1- What is Disclaimer of Inheritance (Renunciation of Inheritance)?

1-What is Disclaimer of Inheritance (Refusal of Inheritance)?

Disclaimer of inheritance is defined as the refusal of the rights and obligations of an estate, formed by the deceased's debts and receivables, by legal or appointed heirs upon the death of the testator.

In accordance with the principle of universal succession, which is the most important principle of inheritance law, legal and appointed heirs automatically acquire the status of heir upon the death of the testator. Once this status is acquired upon the testator’s death, they become liable for the deceased's debts not only with the estate itself but also with their own personal assets.

Article 599 of the Turkish Civil Code states: "The inheritance passes to the heirs immediately and by law upon the death of the testator." As a rule, heirs are not required to make a declaration of intent. As a result of the principle of universal succession, the inheritance passes to the heirs as a whole and automatically. The receivables and debts of the testator also pass to the heirs.

Upon the death of the testator, heirs become responsible for this not only with the estate but also with their own personal assets. In cases where the testator is insolvent (in debt), heirs must file a "disclaimer of inheritance" lawsuit to avoid liability.

To file a disclaimer of inheritance lawsuit, one must hold the status of a legal or appointed heir. For a disclaimer of inheritance lawsuit to be filed, the transfer procedures of the assets left by the testator must be completed. Upon the death of the testator, the disclaimer of inheritance lawsuit can only be filed after the movable and immovable properties have been transferred to the legal and appointed heirs. It is possible to sign an inheritance waiver agreement or transfer inheritance rights before the testator's death.

The distribution of inheritance and the disclaimer of inheritance are important subjects in inheritance law that closely concern appointed or legal heirs. There are two different ways for appointed or legal heirs to file a disclaimer of inheritance lawsuit. These are: Actual Disclaimer of Inheritance and Legal (Automatic) Disclaimer of Inheritance.

2-What is Actual Disclaimer of Inheritance?

In accordance with Article 609 of the Turkish Civil Code, an inheritance is renounced when heirs who have the power of discernment and are of legal age submit their unconditional and unqualified declaration that they renounce the inheritance, either in writing or orally, to the Civil Court of Peace at the testator's last place of residence. For heirs to use their declaration of actual disclaimer of inheritance, the testator must have passed away and the inheritance must have been transferred. The declaration of actual disclaimer of inheritance is not subject to any formal requirements.

To file a disclaimer of inheritance lawsuit, legal and appointed heirs must have the capacity to act. With the heirs' declaration of actual disclaimer of inheritance, their liability arising from the estate's debts ends with the decision given by the judge of the Civil Court of Peace. Furthermore, with the declaration of actual disclaimer of inheritance, the heirs' right to be an heir also ends. The declaration of actual disclaimer of inheritance can also be exercised by a representative with special authorization. The declaration of actual disclaimer of inheritance for an heir with no capacity can be made by a legal representative. As clearly regulated in Article 463 of the Turkish Civil Code, for heirs under guardianship, the guardian's declaration is not sufficient; permission from the civil courts of peace or courts of first instance is also required.

As clearly regulated in Article 609 of the Turkish Civil Code, the declaration of actual disclaimer of inheritance must be made unconditionally and unqualifiedly.

3-How to Disclaimer Inheritance?

The legal or appointed heir must apply to the judge of the Civil Court of Peace at the testator's last place of residence and submit their request for actual disclaimer of inheritance by making a declaration in writing or orally. The declaration of actual disclaimer of inheritance must be made unconditionally and unqualifiedly, covering the entire inheritance. Partial disclaimer of inheritance is not possible.

If the request for disclaimer of inheritance was not made as a result of error, deception, or duress, it is not possible to unilaterally withdraw from the disclaimer declaration after the decision of the Civil Court of Peace judge has been registered with the relevant land registry office. In the event that the heir makes a disclaimer declaration as a result of error, deception, or fraud, a cancellation request must be filed for the disclaimer transaction made.

4-When Should Disclaimer of Inheritance Be Done?

The request for legal (automatic) disclaimer of inheritance must be made within 3 months from the date of the testator's death. Upon the death of the testator, heirs must apply to the Civil Court of Peace where the deceased last resided to file a lawsuit for actual disclaimer of inheritance. As a result of the request for disclaimer of inheritance, it is registered without the discretionary power of the Peace Judge.

As a rule, the period for legal heirs regarding the disclaimer of inheritance begins on the date the legal heirs learn of the testator's death. If the heirs learned of their status as heirs after the date of the testator's death, the date of learning is accepted as the start date. If a legal heir has been excluded from the inheritance through a testamentary disposition, the disclaimer period begins the moment the heir learns that this disposition has been canceled.

As a rule, the period for appointed heirs regarding the disclaimer of inheritance is three months. The period for disclaimer of inheritance begins when the Civil Court of Peace officially opens the will and notifies them. For heirs appointed by an inheritance contract, the disclaimer period begins in the same way as it does for legal heirs.

5-What is Legal (Automatic) Disclaimer of Inheritance?

In accordance with the provision of Article 605 of the Turkish Civil Code, if the testator's insolvency at the time of death is clearly evident and officially determined, the inheritance is considered renounced. In the presence of these conditions for legal (automatic) disclaimer of inheritance, there is no need for any declaration of intent. In this case, no specific time period is foreseen for acceptance or rejection. The determination of this can be requested from the court at any time and can also be asserted at any time in lawsuits filed by the creditors of the estate.

In the case of legal disclaimer of inheritance, heirs acquire the estate as a whole upon the opening of the inheritance. However, this acquisition is a temporary situation. The heir is not obliged to declare that they have renounced the inheritance. In accordance with the relevant provisions of the Turkish Civil Code, it is accepted that heirs have renounced the inheritance if they allow the disclaimer period to pass by remaining silent. Since legal disclaimer of inheritance is accepted as a presumption, there is no need for heirs to make a declaration to renounce it. However, the heir may make a declaration to the Civil Court of Peace to prevent future disputes.

The conditions for legal disclaimer of inheritance are as follows;

The testator is in a state of insolvency at the time of death and this insolvency is clearly evident,

Or their insolvency has been officially determined.

In the presence of these conditions, it is accepted that the heirs have renounced the inheritance by presumption.