Estate Determination Case | Izmir Law Firm
1- What is an inheritance?
It is the name given to all the assets (called active assets) and liabilities (called passive assets) that pass to the heirs after the death of the testator.
2. How is the deceased's assets determined?
In a lawsuit to determine the estate of a deceased person, consisting of their assets and liabilities, assets include movable and immovable property, and money, while debts and expenses are referred to as liabilities.
It may not always be possible to know the full extent of the assets of a person who has passed away leaving an inheritance. This is because it is common for heirs to possess bank accounts, safe deposit boxes, and even real estate, often without their knowledge. In some cases, the determination of assets is impossible due to a lack of communication between the deceased and the heirs, or because of a non-first-degree kinship. Without determining the assets, it is also impossible to file a lawsuit for the dissolution of joint ownership (Izale-i Şuyu). Therefore, a lawsuit for the determination of the estate must first be filed in the civil court of peace in the deceased's place of residence.
As a rule, the name, surname and Turkish Republic identity number of the deceased. To the Banking Regulation and Supervision Agency (BDDK) Requests should be sent to all land registry and cadastre offices, traffic registration offices, and banks to inquire about the deceased's movable property, including vehicles; all assets of the deceased should be identified without fail. The importance of having a lawyer involved in this process lies in determining which institutions to request information from, requesting the appointment of a representative for the estate if needed, and ensuring a complete and accurate inventory of the assets.
3. Who can file a lawsuit to determine the assets of an estate? Is there a statute of limitations?
A lawsuit for the determination of the estate can be filed by those who have a legal interest. Therefore, a lawsuit for the determination of the estate can only be filed by legal and appointed heirs. Legal or appointed heirs who acquire the right to file a lawsuit upon the death of the testator can file a lawsuit for the determination of the estate at any time, as there is no forfeiture period or statute of limitations.
4. Are there any assets or rights that are not included in the estate determination lawsuit?
Rights of usufruct and right of residence that terminate upon death are not included in the estate determination lawsuit. The following are some of the situations in which a claim cannot be made in the estate determination lawsuit, and these situations are listed below.
* It is stipulated that a claim for moral damages cannot be transferred unless accepted by the other party, and it does not pass to the heirs unless it is asserted by the testator.
An employment contract made taking into account the employer's personality terminates upon the employer's death, while the death of the employee is the reason for the termination of the employment relationship.BK. (m. 347).
*In a power of attorney agreement, subject to the provision of post-mortem power of attorney, the death of one of the parties is a reason for the termination of the agreement.BK. (m. 397).
*Unless there is a prior agreement between the heirs and the partners regarding the continuation of the partnership, the partnership terminates upon the death of a partner.BK. (Article 535/b.2). Only the amount due to the deceased after the liquidation of a simple partnership is included in the estate. Similarly, in a family property partnership, if one of the partners dies, his heirs who are not part of the partnership can only request that the equivalent of the deceased partner's share be paid to them (Turkish Civil Code, Article 382).
*Intellectual and industrial property rights are, as a rule, inherited. However, some rights of this nature, which are specific to the testator who created the work (for example, the right to modify the work), do not pass to the heirs.
*Legal relationships and obligations that become due upon death, such as claims arising from the property regime due to the termination of a marriage by death, are excluded from the estate.
5- How does the legal process proceed?
The value of movable assets within the deceased's estate is determined not by the date of the lawsuit, but by the date of the deceased's death. This is because the transfer of inheritance takes place on the date of the deceased's death. Essentially, upon death, the heirs automatically become co-owners of the assets without the need for any further action. However, the necessary transfer procedures or lawsuits to ensure the transfer of these assets fall under the purview of inheritance law. Therefore, it is essential to first determine the estate. In determining the estate, the aforementioned memoranda are written, and the lawsuit petition is served to the other heirs. Subsequently, the amount of assets in the estate is calculated by an expert. After this process, the heirs receive their money from the designated banks and, through a lawsuit for the dissolution of the joint ownership, acquire their inherited shares in the immovable assets.
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