What is an Estate?
An estate is defined as all legal relationships that pass to the heirs upon the death of the testator and are not tied to the testator’s person.
While the term “estate” roughly means the same as “property,” some rights and unconditional things considered as property cannot be included in the estate.
Certain rights and obligations tied to the testator’s person and stipulated to terminate upon death are considered part of the testator’s property, but not all of them are included in the estate. For example, the right of usufruct, which terminates upon the death of the right holder, is a real right that does not belong to the estate.
What is the Purpose of an Estate Determination Lawsuit?
In cases where the court is asked to determine the existence or non-existence of a right or legal relationship, or whether a document is forged, individuals with a legal interest can file a determination lawsuit. (See: Code of Civil Procedure, Article 106) In this way, individuals will ensure that the legal relationships they claim to exist or not exist are determined by the court through litigation.
What is an Estate Determination Lawsuit?
It is not always possible for heirs to know the full and accurate information about the deceased’s assets. While heirs may be able to obtain some information through their own research, they may face many difficulties in practice.
For example, an heir who goes to the relevant land registry office to research a real estate property belonging to the deceased, even if they can access the records by taking advantage of the principle of transparency, may still fail to obtain sufficient information despite expending considerable effort. During this research process, matters such as inheritance certificates and the transfer of inherited assets are sometimes requested in advance, and the heir’s right to research the inheritance and, if necessary, to reject the inheritance or pursue a lawsuit for the cancellation of the title deed due to collusion in cases of asset concealment, may be compromised. In particular, if there is a pre-existing inter vivos transfer of property, such as a fraudulent transaction or donation, historical land registry records will be required. It would be quite difficult for an heir to carry out such a transaction.
Furthermore, there may be unknown assets of the deceased. To ensure a complete and accurate estate calculation, filing such a lawsuit will protect the interests of the heirs.
(Source: Turkish Supreme Court, 8th Civil Chamber, Case No. 2013/13009, Decision No. 2014/17643) “…Estate determination cases are of an evidentiary nature and not of a claim for ownership. Therefore, the court’s task is to identify and record the assets declared to belong to the estate, to sell and convert into cash any assets that cannot be preserved, and for movable assets, to deposit any cash, foreign currency, etc., into a bank as estate assets; to record any gold or other jewelry in the estate court’s safe; to deliver other assets to the relevant party or a third party as a trustee, and to indicate the identified assets in the judgment. It is also possible to deliver some or all of the estate assets to one heir with the consent of all heirs. A decision that would result in the distribution of the estate cannot be made without the consent of all heirs. Undoubtedly, each heir has the right to file a claim for ownership on the grounds that the assets taken into the estate trust account in this way are not included in the estate and belong to them; if the lawsuit is successful, the heir has the right to claim those assets…” It is possible for the court to request the delivery of the element to itself…”
Who Can File an Estate Determination Lawsuit?
In determination lawsuits, the existence of a legal interest in the matter requested by the person requesting the determination is required. In this regard, heirs can file this lawsuit regarding the determination of the estate, and if there is a legal necessity, this lawsuit may also be filed ex officio.
Until the distribution of the estate, the estate is in the joint ownership of all heirs. Therefore, the consent of the other co-owners is required for any disposition of the assets constituting the property.
Nevertheless, although each co-owner has the right to file an estate determination lawsuit after the estate has been determined, the consent of another heir is not required.
How is the Estate Investigated and Calculated?
When calculating the estate of the deceased, the court prioritizes the statements and requests of the heirs. Accordingly, accessing official records, information, and documents regarding the alleged assets and liabilities will be a priority. Of course, the court will not be limited to these matters and will conduct a comprehensive investigation into the deceased’s assets.
Turkish Supreme Court, 3rd Civil Chamber, Case No. 2015/4790E, Decision No. 2016/4296K, March 21, 2016;
“…the court should first determine the deceased’s estate (including transfers and non-transfers), taking into account the statements of the parties’ representatives (Code of Civil Procedure, Article 31); information, documents, and records regarding the movable and immovable property within the estate should be obtained and included in the file; then, based on these principles, a report should be obtained from an expert witness specializing in reduction of inheritance shares, also addressing the aforementioned issues, and a fixed reduction rate should be determined based on the net estate account…”
In addition to these, if the heir(s) have claims regarding the deceased’s property, believing that a transfer of property through collusion or donation occurred during their lifetime, the court will also evaluate these claims. In other words, the movable and immovable properties belonging to the deceased will be identified, and if the conditions are met, the necessary precautionary measures will be taken.
For example, if there is a claim regarding a real estate property, the court may request that the relevant land registry records for that property be included in the court file by submitting a petition to the relevant land registry office. An active/passive inquiry will be conducted at the land registry office along with the request. These documents, which will be obtained and included in the case file, will be submitted to an expert in the field for necessary calculations, which will determine the estate. At first glance, it might seem that an expert is not needed after the identification of the assets. However, the valuation of existing assets is a matter requiring expertise.
(Turkish Supreme Court, 2nd Civil Chamber, 8487-9834, June 23, 2005) “…In order to claim that the reserved shares have been infringed, it is necessary to know the entire estate, both the part subject to the bequest and the part not subject to the bequest. For this, all records and documents related to the estate must be brought to the file. The title deeds and other documents of the deceased’s immovable properties not subject to bequest are determined ex officio by the court.”
When determining the estate, the assets and liabilities of the estate are determined. The net estate is calculated by subtracting all liabilities from all assets. The net estate is the portion to be distributed to the heirs.
Movable and immovable properties, receivables (both due and not due), their interest, and similar values constitute the assets of the estate; while the liabilities of the estate consist of the deceased’s debts and certain expenses.
*The 2nd Civil Chamber of the Supreme Court of Appeals addressed the calculation of the estate in a decision. This decision is as follows:
Republic of Turkey SUPREME COURT OF APPEALS, 2ND CIVIL CHAMBER, CASE NO. 2003/5672E, DECISION NO. 2003/8996K, JUNE 17, 2003
“The estate consists of the assets and valuables left by the testator at the time of death, as well as any transfers made subject to restitution and reduction. These constitute the assets of the estate. The liabilities of the testator include debts, the monthly maintenance of dependents, expenses such as keeping and sealing the estate inventory, and funeral expenses. Subtracting these debts from the assets constitutes the net estate. After the estate is determined in this way, its monetary value must be determined by evaluating it according to the prices at the date the inheritance was opened (Article 454 of the Civil Code). Whether the testator has exceeded the reserved share determined in Article 453 of the Civil Code is calculated based on this figure. If the disposition rate has been exceeded, the reserved shares in the transfer transaction may be considered, depending on the nature of the disposition.” Whether or not there was intent to harm should be determined by considering both objective and subjective factors. Because not every gain exceeding the savings rate implies intent to harm the reserved share.”
Which Court Handles the Estate Determination Case?
While estate determination cases are non-contentious judicial matters, and the general jurisdiction in non-contentious cases belongs to the Civil Courts of Peace, the jurisdiction is determined by the deceased’s last known address before death.
Statute of Limitations in Estate Determination Cases
The request for a precautionary determination of the estate is not subject to a time limit. A determination can be requested at any time.
Turkish Supreme Court, 2nd Civil Chamber, Case No. 2004/15828, Decision No. 2005/1411, Date: February 7, 2005;
“The request for a precautionary determination of the estate is not subject to a time limit. A determination can be requested at any time. Rejecting the request for determination on the grounds that the one-month period has expired is incorrect.”