The Determination of Estate Assets Case in Turkish Law

 

DETERMINATION OF ESTATE ASSETS CASE

The determination of estate assets case aims not only to identify the decedent’s assets but also to protect the estate. All private law relations of the decedent, which are suitable for transfer through inheritance, are considered the estate. A person may have movable or immovable properties, intellectual rights, and other asset values. The estate should not be limited only to assets. The rights, receivables, and debts of the decedent that are suitable for transfer are also included in the estate. The estate has two parts: active and passive. The decedent’s rights and receivables form the active part of the estate, while debts form the passive part.

The decedent may have certain rights and values that are not included in the estate but are in the asset pool, and vice versa. Examples include compensation for properties subject to equalization and the accrued value compensation claim that arises in favor of the surviving spouse in the participation in acquired property regime upon one party’s death. Legal relationships that exist in the asset pool but not in the estate include usufruct rights, right of habitation, moral compensation rights, and alimony receivables.

NATURE OF THE DETERMINATION OF ESTATE ASSETS CASE

The estate is opened after the decedent’s death. The scope of the estate may not be fully determined. In this case, heirs can file a determination of estate assets case to identify the estate. This case is filed by the heirs after the decedent’s death to determine the active and passive parts of the decedent’s estate. It is a declaratory lawsuit.

After the decedent’s death, heirs may not know the debts, receivables, or rights. Through the determination of estate assets case, heirs can learn about the decedent’s debts, receivables, or rights. Consequently, the decedent may have many debts. With the determination obtained from this case, heirs can choose not to accept the inheritance, avoiding potential damages they might incur. Article 590 of the Turkish Civil Code also preserves the interests of the heirs. The relevant provision is as follows:

“The peace judge orders the inventory of the estate in the following cases:

1. If there is or should be a ward among the heirs,

2. If one of the heirs has been missing for a long time and has no representative,

3. If one of the heirs or interested parties requests within one month from the date of death, the inventory process is completed without delay.”

Furthermore, in cases of insolvent inheritance, Article 605 of the Turkish Civil Code protects heirs with the provision: “If it is clear or officially determined that the decedent was insolvent at the time of death, the inheritance is considered rejected.”

The determination of estate assets case aims not only to identify the decedent’s assets but also to protect the estate. Until the estate is shared, it may face risks such as asset smuggling. Therefore, heirs can request the sealing of the estate and the keeping of the estate inventory from the court. This case only determines the estate. Procedures related to the distribution of inheritance cannot be conducted with this case.

Articles 589 and following of the Turkish Civil Code contain provisions regarding the determination of estate assets case. Additionally, Articles 32 and following of the Regulation on the Implementation of the Provisions of Custody, Guardianship, and Inheritance of the Turkish Civil Code provide provisions on how to apply Articles 589 and following of the Turkish Civil Code.

Article 589 of the Turkish Civil Code is as follows: “The peace judge of the decedent’s place of residence takes all necessary measures, upon request or ex officio, to protect the estate assets and ensure their transfer to the rightful owners.” According to this article, the peace judge of the decedent’s place of residence can take all necessary measures, upon request or ex officio, to protect and transfer the estate assets to the rightful owners. These measures are listed in Article 589 of the Turkish Civil Code. According to the article, “These measures are particularly related to the listing of assets and rights in the estate, sealing the estate, managing the estate officially, and opening wills in the cases specified in the law.” The article also provides that “The expenses related to these measures are covered by the applicant for reimbursement from the estate later; if the judge orders the measures ex officio, the expenses are covered by the State.”

CALCULATION OF NET ESTATE AMOUNT IN THE DETERMINATION OF ESTATE ASSETS CASE

To determine the exact inheritance for the heirs, a determination of estate assets case is filed. In this case, the net assets of the decedent at the time of death are calculated. Net assets are obtained by subtracting passive assets from active assets. This way, the ownership and monetary value of the decedent’s net estate at the time of death are determined.

Existing Values in the Estate’s Active

The values in the active part of the decedent’s assets in an estate are assessed based on their monetary value on the day of death, i.e., the opening day of the inheritance, according to Article 507 of the Turkish Civil Code. For example, the fact that an asset in the estate was in better condition before the decedent’s death or suffered damage or lost value after death is not considered. Similarly, the monetary values of the assets in the estate are calculated based on the market situation at the time of the decedent’s death, and later appreciation or depreciation is not considered. Movable and immovable properties and receivable rights in the estate, other than cash, are appraised based on their market value at the time of the decedent’s death.

Passive Values to be Deducted from the Estate’s Active

The values to be deducted from the estate in calculating the disposable portion are specified in Article 507 of the Turkish Civil Code. These include the decedent’s debts, funeral expenses, and expenses for sealing and listing the estate. The three-month subsistence expenses of those living with and cared for by the decedent are also deducted from the estate.

Decedent’s Debts

The decedent’s debts do not disappear with the death of the decedent but are paid by the heirs. For these debts to be paid, they must be valid and not yet performed. Whether their terms have come or not does not matter. On the other hand, testamentary debts cannot be deducted from the estate.

Funeral Expenses

Funeral expenses are covered from the deceased’s estate. These expenses should be customary and appropriate to the deceased’s religious and social status. Showy and exaggerated funeral expenses cannot be deducted from the estate.

Expenses for Sealing and Keeping the Estate Inventory

The sealing and keeping of the estate inventory by the peace judge of the decedent’s last place of residence, according to Articles 589, 590, and 591 of the Turkish Civil Code, require some expenses to protect the estate until it is actually transferred to the rightful owners. These expenses are also deducted from the estate.

Three-Month Subsistence Expenses of Persons Living with the Decedent

To prevent sudden abandonment of those the decedent cared for and kept with him, and to allow them time to establish a new life and take care of themselves, a three-month period is given. During this three-month period, the expenses of these people are covered. These people do not have to be heirs. Heirs can receive both their inheritance and these three-month subsistence expenses.

POSSIBLE OUTCOMES OF THE DETERMINATION OF ESTATE ASSETS CASE

We have mentioned above that the determination of estate assets case is filed by the heirs or those representing the heirs to protect their rights and determine the active and passive values of the inheritance when the decedent’s assets cannot be fully determined after a person’s death. Based on this definition, we can say that the results of this case are as follows:

– The active and passive values in the decedent’s estate are determined accurately and completely, and the net estate amount is calculated.

– The heirs of the estate are determined. These may be the decedent’s legal heirs or those determined based on the will if the decedent has a will.

– After determining the heirs, the court determines the rights and shares of the heirs. This process is important for protecting the rights of the heirs. However, no distribution of inheritance can be done here.

– The data determined as a result of this case allow the inheritance to be recorded in official documents/records.

– Decisions regarding the determination, protection, and management of the estate in the determination of estate assets case are not final judgments.

PERSONS WHO CAN FILE A DETERMINATION OF ESTATE ASSETS CASE

The determination of estate assets case is a non-contentious jurisdiction matter. Therefore, the relevant person who can file the determination of estate assets case can be any heir of the decedent or the person representing the estate on behalf of all heirs. The relevant person can file the determination of estate assets case as long as their legal interest continues. There is no statute of limitations or prescriptive period for this case.

Since the determination of estate assets case is a non-contentious jurisdiction matter and there is no dispute, there is no defendant party.

COURT OF JURISDICTION IN THE DETERMINATION OF ESTATE ASSETS CASE</strong >

The court of jurisdiction determines which court should handle a case in that location. According to Article 383 of the Code of Civil Procedure, the court of jurisdiction in non-contentious jurisdiction matters is the Peace Court. Since the determination of estate assets case is a non-contentious jurisdiction matter, the court of jurisdiction for the determination of estate assets case is the Peace Court.

COMPETENT COURT IN THE DETERMINATION OF ESTATE ASSETS CASE

The competent court determines which court in which location should handle a case. The competent court for the determination of estate assets case is the Peace Court in the last place of residence of the decedent. If the decedent’s place of residence is abroad, the competent court is the Peace Court in the location where the decedent has assets in Turkey.

 

SUPREME COURT DECISION EXAMPLES REGARDING THE DETERMINATION OF ESTATE ASSETS CASE

“Decisions regarding the measures to be taken according to Articles 589 and following of the Turkish Civil Code for the determination, protection, and management of the estate are not final judgments and cannot be appealed. The court’s actions are related to the measures necessary to protect the estate and ensure its transfer to the rightful owners (Article 589 of the Turkish Civil Code). Heirs can always file a restitution lawsuit (Article 640 of the Turkish Civil Code). Therefore, the appeal request should be rejected as the decision is not appealable.” (SUPREME COURT 14th CIVIL CHAMBER. 2016/5952 E., 2019/278 K.)

“Determination of estate assets cases are in the nature of evidence determination and are not restitution lawsuits. Therefore, the court should identify the estate assets and list them in the inventory, sell those that cannot be preserved and convert them into money, deposit cash, foreign currency, etc., in the bank as estate assets; if there are gold and similar jewelry, take them into the court’s custody as estate assets and record them; and deliver other items to the relevant person or a third person as a trustee and indicate the identified items in the decision. The plaintiff’s attorney also requested the appointment of a representative for the deceased’s estate company according to Article 640 of the Turkish Civil Code. The court’s failure to make a decision on the request for the appointment of a representative for the estate is not correct according to Article 26 of the Code of Civil Procedure No. 6100, and the judgment should be overturned for this reason.” (SUPREME COURT 14th CIVIL CHAMBER. 2015/5738 E., 2016/8692 K.)

“In the request for the determination of the estate, which is protective and precautionary, after the procedures are completed, the estate should be left, and it should be limited to the protection and determination decision. A judgment leading to liquidation cannot be established. However, the court established a judgment different from the request and exceeded its authority without a proper amendment. Therefore, based on the content of the case petition and the manner in which the claim is made, the request in the case is related to the determination of the estate; after the determination of the estate, any property to be distributed can be made the subject of a distribution (partition) lawsuit by making it the subject of a proper lawsuit; since there is no properly filed partition lawsuit in the present case, both lawsuits cannot be decided together; and a judgment should be established regarding the request for the determination of the estate, and the judgment should be overturned for this reason.” (SUPREME COURT 14th CIVIL CHAMBER. 2015/4861 E., 2017/6594 K.)

“In the partition lawsuit, which is contentious, the request for the determination of the estate is a non-contentious jurisdiction matter. While the court in the location where the immovable property is located has exclusive jurisdiction in the partition lawsuit, the court of the decedent’s place of residence has exclusive jurisdiction in the determination of estate assets case. Although the judgment rendered as a result of the partition lawsuit is a final judgment, the judgment rendered as a result of the determination of estate assets case is precautionary and does not constitute a final judgment. In the concrete case, the requests for partition and determination of the estate were put forward and decided together; however, since the causes of action and evidence of the two lawsuits are different, the two lawsuits should be heard separately. The judgment should be overturned as the principle in question was not observed.” (SUPREME COURT 14th CIVIL CHAMBER. 2015/10189 E., 2017/2637 K.)
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