What Is The Actual Rejection Of Inheritance?
What is the Actual Renunciation of Inheritance?
According to Article 609 of the Turkish Civil Code, the inheritance is renounced when the heirs who have the capacity to discern and are of legal age submit their unconditional and unreserved inheritance declarations, stating that they have renounced the inheritance in writing or orally, to the Peace Court of the last place of residence of the deceased. In order to exercise this right, the death of the deceased and the transfer of the inheritance must have taken place. This declaration of renunciation is not subject to any formal requirements. It is sufficient to notify the court in writing or orally.
The heir must have legal capacity to renounce the inheritance. This is because, with the declaration of renunciation, the heir is released from liability for the debts of the estate, but at the same time, the right to inherit is also extinguished. The declaration of renunciation may also be made by a representative with special authority. The declaration of renunciation by a person with full legal capacity is made by their legal representative. For those under guardianship, in addition to the guardian’s declaration, the permission of the conciliation or civil court is also required (MK m.463). In the case of persons with limited legal capacity, either the person themselves or their legal representative may make a direct declaration of renunciation with the approval of the legal representative. It is accepted that the declaration of refusal by persons with limited legal capacity who have been assigned a legal advisor is valid in the same way as for persons with full legal capacity. In a community property regime, one spouse cannot refuse an asset that would be included in the community property without the consent of the other spouse, and if the estate is insolvent, they cannot accept it (Civil Code Art. 225).
The declaration of renunciation must be unconditional and without reservation (Civil Code Art. 609). Otherwise, the conditional declaration of renunciation will be invalid, and the heir will inherit the estate. The exception to this is the renunciation of inheritance in favor of a subsequent heir, as regulated in Civil Code Art. 614. Here, the heirs who renounce the inheritance may request that the heirs who come after them be invited to accept or renounce the inheritance before the official liquidation of the inheritance. Upon this, the renunciation is officially notified to those heirs. If these heirs do not accept the inheritance within one month, the inheritance is deemed to have been renounced by them as well, and the inheritance is liquidated in accordance with bankruptcy provisions (TMK Art. 614).
How is the inheritance rejected?
The heir may reject the inheritance by making a written or oral statement to the Peace Court of the deceased’s last place of residence (TMK Art. 609). This rejection statement must be unconditional and without reservation, covering the entire inheritance. The inheritance cannot be rejected in part. Otherwise, the heir acquires the inheritance.
If the renunciation of inheritance was not made as a result of mistake, fraud, or coercion, it is not possible to unilaterally revoke the renunciation after it has been registered by the Peace Judge. If the heir made the renunciation as a result of mistake, fraud, or coercion, a request for annulment of the renunciation may be made.
Within What Period Must the Inheritance Be Renounced?
The law provides for a three-month period for renouncing the inheritance. Accordingly, the heir must request the renunciation of the inheritance within three months of the death of the deceased or of learning that they are an heir. This request for renunciation is registered without the discretion of the Conciliation Judge.
The inheritance may be renounced within three months. This period begins from the date of the decedent’s death for legal heirs, unless they can prove that they learned of their status as heirs later, and from the date the disposition is officially notified to the appointed heirs (TMK Art. 606). If the inheritance is not renounced within this period, it is deemed to have been acquired.
In cases where an official register is kept, the period for renunciation is set at one month (TMK Art. 626). After the period for reviewing the register has expired, the heir must declare whether they renounce the inheritance, request official liquidation, or accept it unconditionally in accordance with the register. However, the court may grant an extension in necessary cases (TMK Art. 626). This one-month period begins with the service of the summons by the Peace Court, which maintains the estate ledger, to the heirs to appear in court to announce their decisions regarding the estate (TMK Art. 626).
The commencement of the periods for renouncing the inheritance occurs as follows:
For Legal Heirs: As a general rule, the period for legal heirs begins when they learn of the decedent’s death (TMK Art. 606). If the status of heir is learned later, that date is considered the starting point. If the legal heir has been excluded from the inheritance by a disposition upon death, the period for renunciation begins when the heir learns of the invalidation of such disposition.
For Appointed Heirs: The period for renunciation for appointed heirs is three months (TMK Art. 606). This period begins when the heir learns of their status as an heir through the official opening of the will by the Peace Court and its notification to them. For heirs appointed by an inheritance contract, this period operates in the same manner as for legal heirs. If a third party is appointed by this contract, the period begins with official notification, as in the case of a will.
Registration of the Estate as a Protective Measure: As a protective measure, if the estate is registered, the period for renouncing the inheritance begins for both legal and appointed heirs upon notification of the registration by the conciliation judge (TMK Art. 607).
Transfer of the Right of Renunciation to Subsequent Heirs: The right of renunciation of a deceased heir who did not renounce the inheritance passes to his or her heirs (TMK m. 608). In this case, the heir who replaces the deceased heir has two rights of renunciation. This heir has the right to renounce both the inheritance left to him or her by his or her Muris and the inheritance left to his or her Muris by his or her Muris. The heir may renounce both inheritances or only the inheritance left to them by their own decedent. However, the heir may not renounce the inheritance left to them by their own decedent and accept the inheritance left to their decedent. This is because the first inheritance is transferred to them as part of the estate of their own decedent who died without renouncing the inheritance.
Extension of the Period and Granting of a New Period: In the event of important reasons, the conciliation judge may extend the period of rejection granted to legal and appointed heirs or grant a new period (TMK m.615). For this, there must be a valid reason along with the request.
To Which Court Should the Declaration of Renunciation of Inheritance Be Submitted?
The request to renounce the inheritance is submitted to the Conciliation Court where the inheritance will be opened. This is the court of the deceased’s place of residence. The declaration of renunciation is registered in the court’s special register by the Conciliation Court where the inheritance is opened (TMK Art. 609). Upon request, the heir who has renounced the inheritance is issued a document confirming the renunciation (TMK Art. 609).
Can the Declaration of Renunciation of Inheritance Be Revoked?
As a general rule, once the inheritance has been renounced, it is not possible to retract the renunciation. However, under the provisions of the Turkish Code of Obligations, Articles 23 et seq., if the heir made the renunciation due to mistake, fraud, or coercion, a request for cancellation of the renunciation may be made. The heir must pursue the cancellation of the renunciation through litigation.
Does the Right to Renounce the Inheritance Lapse?
An heir who does not renounce the inheritance within the legal time limit acquires the inheritance unconditionally (Turkish Civil Code, Article 610). An heir who, before the expiration of this period, interferes in the affairs of the estate, conducts affairs of the estate outside the scope of ordinary administration, or conceals or appropriates the property of the estate, can no longer renounce the inheritance. The right to renounce the inheritance lapses in the following cases:
The expiration of the three-month period for renunciation (TMK Art. 606).
Loss of the Right to Renounce Due to Waiver: An heir who wishes to waive their right to renounce the inheritance may make a written or oral statement to the Peace Court of the decedent’s last place of residence, or may direct this statement to the relevant parties (heirs, beneficiaries of the will, creditors of the estate).
Loss of the Right to Renounce Due to Interference in Estate Matters: If one of the heirs interferes in estate matters by performing acts that are not part of the ordinary administration of the estate and are not necessary for the conduct of the decedent’s affairs, this constitutes an implied acceptance of the inheritance, and the heir’s right to renounce the inheritance is extinguished (Turkish Civil Code, Article 610). Whether such actions are ordinary or not is determined based on the nature of the action.
The testator’s filing of a lawsuit or resorting to compulsory execution to prevent the expiration of the statute of limitations and the period for the forfeiture of rights does not eliminate the right of renunciation (TMK Art. 610/ll). Since the purpose here is to protect the interests of the estate, the heir’s right of renunciation does not lapse even if the heir interferes with the estate affairs. According to the Court of Cassation, obtaining an inheritance certificate cannot be considered as interfering with estate matters, and this action does not imply tacit acceptance of the inheritance.
The payment of a widow’s or orphan’s pension by the social security institution cannot be considered as involvement in the affairs of the estate. Receiving a widow’s or orphan’s pension does not result in the loss of the right of renunciation. The Supreme Court has stated that the “loss of support” compensation has an independent nature from the status of heir, and that the renunciation of the inheritance does not prevent the claim for such compensation.
The court will assess the fact that the heirs have interfered with the estate proceedings based on the specific circumstances of the case, i.e., the nature of the actions taken by the heir regarding the estate. In this way, it will be determined whether there is an implied acceptance.
Loss of the Right to Disclaim Due to the Heir Appropriating or Concealing Property Belonging to the Estate: If one of the heirs conceals or appropriates property belonging to the estate during the disclaimer period, the heir’s right to disclaim is lost, and the heir is deemed to have accepted the inheritance (TMK Art. 610). The person committing this act must know that they are an heir and act intentionally.