Petition For The Determination Of Indebtedness Of The Inheritance
……………….. TO THE JUDGE OF THE CIVIL COURT
PLAINTIFFS :
1)………………………………………………
2)………………………………………………
3)………………………………………………
ATTORNEY : ATTY. ……………………… DEFENDANT : ……………………………………………….. (creditor of the execution file)
ATTORNEY : ATTY………………………
SUBJECT : It is related to the Request for Determination of the Indebtedness of the Inheritance.
EXPLANATIONS :
1. ……………. with the identity number ………………..TC, the heir of our clients, passed away on …/…/20….. After the death of the heir, my clients remained as heirs. Since it is known that ……………… did not have any assets in his estate on the date of death, our clients did not reject the inheritance about the estate of the deceased. Following the expiration of the disinheritance period, it was understood that the estate of the deceased ………………. was in debt upon the execution proceedings initiated by the defendant of the case in question……….
2. …………… does not have any real estate or movable property registered to him that may have material value on the date of his death. Our clients’ heir …….. ………., as of the date of his death, did not leave any property of any material value to our clients and left many debts.
3. The defendant ………………. has filed a lawsuit against my clients’ heirs ………………. ………. . Execution Directorate, …….. E. numbered execution proceedings were initiated from the execution proceedings file of the Execution Directorate No. …………… and a payment memorandum was notified to my clients due to their status as legal heirs due to the death of ……………. My clients are therefore faced with paying the debts of the indebted estate.
4. In its decision dated 14/03/2001 and numbered 2001/2-220 Esas and 2001/240 Karar, the General Assembly of the Court of Cassation stated in summary: “Although our Civil Code registers the ”real rejection“ of the inheritance with a period of time and foresees a unilateral declaration of will or a legal action by the heirs, no declaration of will or legal action is foreseen for the ”judicial rejection” in question in the case to produce results. Moreover, it is accepted that the rejection is automatic and an exception has been made to the rule that the inheritance will be automatically transferred to the heirs upon the opening of the inheritance. In reality, the person who is deemed to have forfeited the inheritance may request the determination of this situation by turning against the creditors of the inheritance, as well as asserting this through defense.”
5. Likewise, in the decision of the Court of Cassation General Assembly of Civil Chambers dated 16.04.2008, numbered 2008/4-332 Main and 2008/336 Decision, it was summarized as follows: “The lawsuit is related to the claim for compensation in rem. The dispute centers on whether the provisions regarding the rejection of the inheritance should be applied. If the heir’s insolvency is clearly evident or officially determined, the inheritance is deemed to have been rejected. There is no need for any declaration of will or filing of a lawsuit in order for the forfeiture to be effective. The person whose inheritance is deemed to have been forcibly rejected may request the determination of this situation by filing a claim against the creditors of the inheritance, or may assert this through a defense. It is understood from the scope of the file that the heir does not own any movable and immovable property and does not have any income. In this case, it must be accepted that the heir’s inability to pay is clearly evident. For the reasons explained, it is in accordance with the procedure and the law to decide to dismiss the case on the grounds that the inheritance was forfeited.” The court ruled as follows. The decision of the 10th Civil Chamber of the Court of Cassation with the decision numbered 2002/3022 Main and 2002/3315 Decision, the decision of the 4th Civil Chamber of the Court of Cassation with the decision numbered 2002/1607 Main and 2002/5992 Decision, and the decision of the 4th Civil Chamber of the Court of Cassation with the decision numbered 2004/6782 Main and 2005/155 Decision were similarly ruled.
In the light of the decisions of the General Assembly of Civil Chambers and Civil Chambers of the Court of Cassation, it is clear that a lawsuit can be filed against the creditors of the estate to determine that the estate is insolvent, that this lawsuit is not subject to any period of time, and that the civil court of first instance is authorized in this case.
For the reasons stated above, we are obliged to file the present lawsuit in order to determine that the estate of …………., my clients’ murisi …………., is insolvent.
LEGAL GROUNDS : TMK. and all other legal legislation provisions,
LEGAL EVIDENCE : ……………( )…Execution Directorate’s follow-up file numbered 20…./……… E., certificate of inheritance, title deed records, traffic records, witness statements, expert examination and all other legal evidence.
REQUEST AND CONCLUSION : For the reasons we have presented and explained above, we respectfully request and demand that it be decided that the inheritance is determined to be insolvent and that the heirship of our clients be removed, and that the trial expenses and attorney fees be charged to the other party. …/…/20
Attorney for the plaintiffs