Estate Establishment Case in Turkish Law

ESTATE ESTABLISHMENT CASE 

The case of the establishment of an estate aims not only to determine the property of the deceased but also to protect the estate. All the private legal relationships that are suitable for transfer through inheritance are considered part of the estate. A person’s assets may include tangible or intangible property values such as real estate, personal property, and intellectual property rights. The estate should not be limited to just the property. The estate also includes the rights, claims, and debts of the deceased that are suitable for transfer. The estate is divided into two parts, namely, active and passive. Indeed, the rights and claims of the deceased form the active part of the estate, while the debts form the passive part.

When a person’s estate includes certain rights and values that are not part of their property, or when their property includes rights and values that are not included in the estate, this creates a need for reconciliation. For example, when a person’s estate includes rights that were not part of their property but were created through legal relationships or, in the case of the marital property regime, when a surplus value accrues to one party upon the death of the other party, it can be cited as an example. Rights that exist in the property but are not included in the estate can include usufruct rights, easement rights, moral compensation rights, and alimony claim rights, for instance.

NATURE OF THE ESTATE ESTABLISHMENT CASE

The estate is established after the death of the deceased. The scope of the estate may not be fully determined. In such cases, the heirs may file a lawsuit to determine the estate by opening an estate establishment case. The estate establishment case is a lawsuit opened by the heirs after the deceased’s death, with the aim of determining the assets and liabilities of the testator. This lawsuit has the nature of a determination case.

After the death of the deceased, the heirs may not be aware of their rights, debts, or claims. Through the estate establishment case, the heirs can learn about the testator’s claims, debts, or rights. Ultimately, the testator’s debts may be substantial. As a result of the information obtained in this lawsuit, the heirs may choose not to accept the inheritance and thus avoid potential losses resulting from accepting the inheritance. Article 590 of the Turkish Civil Code also protects the interests of the heirs. The relevant regulation is as follows:

“In the event of the occurrence of one of the following reasons, the reconciliation judge decides to keep the estate records:

1. If someone under guardianship among the heirs or someone who should be placed under guardianship is present,

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 applies within one month from the date of death, the record-keeping process is completed without delay.”

For an estate left by a deceased person in debt, the legislator has also protected the heirs with Article 605 of the Turkish Civil Code, which states, “If, at the time of death, the inability to pay the debts of the deceased has been clearly established or officially determined, the inheritance is considered rejected.”

The estate establishment case aims not only to determine the deceased’s property but also to protect the estate. The estate can face risks, such as property being transferred before the estate is distributed. Therefore, the heirs may request the court to seal the estate and keep an estate register. This case only determines the estate, and the distribution of the inheritance cannot be carried out through the estate establishment case.

The Turkish Civil Code contains regulations regarding the estate establishment case in Article 589 and subsequent articles. Furthermore, the Regulation on the Implementation of the Provisions on Guardianship, Trusteeship, and Inheritance of the Turkish Civil Code, Article 32 and subsequent articles, provides rules on how the provisions of Article 589 and subsequent articles of the Turkish Civil Code will be applied.

The regulation in Article 589 of the Turkish Civil Code is as follows: “The reconciliation judge, on request or ex officio, takes all necessary measures to protect the estate property and ensure its transfer to the rightful owners.” According to this article, the reconciliation judge, at the deceased’s last place of residence, can take all necessary measures, either upon request or ex officio, to protect the estate property and ensure its transfer to the rightful owners. The article also lists the measures, which include the writing of the property and rights in the estate, sealing the estate, official management of the estate, and the opening of wills. The article also specifies that the expenses related to these measures will be borne by the applicant for future collection from the estate or, in cases where the judge orders measures ex officio, by the State.

CALCULATION OF THE NET ESTATE AMOUNT IN THE ESTATE ESTABLISHMENT CASE

An estate establishment case is initiated with the aim of determining the estate without any deficiencies for the heirs. In this case, the net value of the deceased’s estate at the time of their death is calculated. The net estate represents the ownership and its monetary value at the time of the deceased’s death, obtained by subtracting the passive estate from the active estate.

Existing Values in the Estate’s Active Part

When calculating an estate, the values in the active part of the deceased’s estate, in accordance with Article 507 of the Turkish Civil Code, are evaluated based on their monetary values on the day of the deceased’s death, which is the day the estate is opened. This means that, for example, any improvements or damages to an asset in the estate that occurred before the deceased’s death or any changes in the market value after the deceased’s death are not taken into account. The monetary values of the estate’s assets are determined based on the market conditions at the time of the deceased’s death, regardless of whether they later appreciate or depreciate in value. This applies to movable and immovable property, as well as rights of claim in the estate.

Deducting Passive Values from the Estate’s Active Part

Article 507 of the Turkish Civil Code specifies the values to be deducted from the estate when calculating the disposition ratio. These include the deceased’s debts, funeral expenses, the cost of sealing the estate, and the expenses related to writing the estate. Additionally, the three-month living expenses of individuals who lived with and were supported by the deceased are deducted from the estate.

The Debts of the Deceased

The debts of the deceased do not disappear upon the death of the testator and must be paid by the heirs. It is sufficient for these debts to be valid and not yet fulfilled for them to be considered for payment, regardless of whether their due dates have passed or not. However, testamentary debts cannot be deducted from the estate.

Funeral Expenses

The funeral expenses are covered from the deceased’s estate. When incurring these expenses, they should be in accordance with the religious and social status of the deceased, taking into consideration customs and traditions. Lavish and extravagant funeral expenses cannot be deducted from the estate.

Sealing the Estate and Writing (Registration) Expenses

The sealing of the estate and the registration of estate records by the reconciliation judge, in accordance with Articles 589, 590, and 591 of the Turkish Civil Code, to protect the estate and facilitate its transfer to the rightful owners, entail certain expenses. These expenses are deducted from the estate.

Three-Month Living Expenses of Individuals Living with the Deceased

Upon the death of the deceased, a three-month period is granted to prevent individuals who relied on and lived with the deceased from suddenly finding themselves without support and to help them establish a new life and address their needs. The purpose of this three-month period is to cover the living expenses of these individuals during this time. It is not a requirement for these individuals to be heirs, but if they are heirs, they can claim both their inheritance and these three-month living expenses.

SITUATIONS ARISING FROM THE ESTATE ESTABLISHMENT CASE

The estate establishment case, as described above, is a lawsuit initiated by the heirs or their representatives after a person’s death when the full extent of the deceased’s assets cannot be determined. Based on this definition, the results of this case can be summarized as follows:

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

– The individuals who are heirs to the estate are identified. These individuals can be the statutory heirs of the deceased, or if the deceased has made a will, individuals identified in the will.

– Once the heirs are identified, the court determines their rights and shares. This process is crucial for the protection of the heirs’ rights. However, no distribution of the inheritance can take place in this case.

– The data determined as a result of this case is used to officially record the inheritance.

– The decisions regarding the establishment, protection, and management of the estate and the taking of measures when necessary are not final judgments in the estate establishment case.

INDIVIDUALS WHO CAN INITIATE THE ESTATE ESTABLISHMENT CASE

The estate establishment case is a non-contentious legal matter. Therefore, the relevant person who can initiate the estate establishment case can be any heir of the deceased, as well as any person representing the estate on behalf of all the heirs. The relevant individual can initiate the estate establishment case as long as their legal interest continues. There are no statutory time limits or statutes of limitations in this case.

Since the estate establishment case is a non-contentious matter and there is no dispute, there is no defendant in this case.

COURT WITH JURISDICTION IN THE ESTATE ESTABLISHMENT CASE

The court with jurisdiction determines which local court should handle a particular case. According to Article 383 of the Turkish Code of Civil Procedure (HMK), in non-contentious legal matters, the court with jurisdiction is the Peace Court of First Instance (Sulh Hukuk Mahkemesi). Since the estate establishment case is a non-contentious legal matter, the court with jurisdiction in the estate establishment case is the Peace Court of First Instance.

COURT WITH AUTHORITY IN THE ESTATE ESTABLISHMENT CASE

The court with authority determines which court in a particular location should handle a case. In the estate establishment case, the court with authority is the Peace Court of First Instance where the deceased had their last place of residence. In cases where the deceased’s last place of residence is abroad, the court with authority is the Peace Court of First Instance at the location where the deceased had assets in Turkey.

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