What is the Judicial Rejection of an Inheritance?
What is the Legal Rejection of Inheritance?
In this article, I will address the subject of the "Legal Rejection of Inheritance" for you, my dear readers.
The issue of the rejection of an inheritance is regulated in Article 605 of the Turkish Civil Code.
Right of rejection
Article 605-Legal and appointed heirs may reject the inheritance.
If the deceased's insolvency is clearly evident or officially determined at the time of their death, the inheritance is deemed to be rejected.
It is accepted as a presumption that an inheritance is legally rejected upon the death of the inheritor without the need for any application. As expressly stated in the Turkish Civil Code, the acquisition of an insolvent estate is only accepted through an express or implied declaration of intent. It is necessary to clarify one of the questions I receive most often: "Can an inheritance be accepted if it has been legally rejected?" Specifically; as clearly regulated in Article 605 of the Turkish Civil Code, if it is clearly and officially evident that the estate is insolvent, a rebuttable legal presumption is accepted that the inheritance has been rejected. Because it is a legal presumption, heirs have the right to refute this presumption through an express or implied declaration of intent. When heirs express that they accept the inheritance through their own free will, they have the opportunity to accept the inheritance until the formal liquidation is concluded within the framework of bankruptcy provisions. The legal rejection of an inheritance is possible not only through the explicit acceptance of the inheritance but also through its implied acceptance. To clarify this with an example; an heir who attempts to conceal estate assets and transfer them to their own property is considered to have implicitly accepted the inheritance. In this case, the heir is held responsible for the insolvent estate in proportion to their own personal assets. Unless the heir files a lawsuit for the actual rejection of the inheritance within the 3-month period specified in the law, they are compelled to file a lawsuit for the legal rejection of the inheritance. There is no obligation in the law to declare an express or implied intention of rejection within the 3-month limitation period.
The issue that causes the most confusion regarding the rejection of an inheritance is that rights arising from the law—such as pension, widow's pension, orphan's pension, compensation for loss of support, and non-pecuniary damages acquired after the death of the inheritor—are rights outside the estate. For this reason, an heir benefiting from rights outside the estate cannot be considered to have accepted the inheritance.
Certain conditions must be met for an inheritance to be legally rejected. Specifically; for an inheritance to be legally rejected, it is required that the deceased was insolvent at the time of death, that this fact has been clearly and officially determined, and that the estate has not been accepted.
The situation of the deceased being insolvent at the time of death is explained as follows: Even though the debts are due, there are no movable or immovable assets available to make payments, and the person is financially insolvent. However, being insolvent is not expressed or understood solely as being in debt. It can be concluded that a person with no income and multiple debts is not necessarily insolvent, but rather unable to pay their debts.
To provide an example: For the deceased to be considered insolvent, the debts in the estate must exceed the assets. If the deceased has 50,000 TL in debts as well as 50,000 TL worth of assets, the condition of being insolvent does not exist, and therefore the requirements for a lawsuit for the legal rejection of the inheritance are not met.
The second condition for the legal rejection of an inheritance is that the deceased's insolvency must be clearly or officially determined. To file a lawsuit for the legal rejection of an inheritance, it is not considered sufficient that the deceased was insolvent at the time of death. In addition to this, a condition of it being clearly or officially determined is sought.
There are certain criteria encountered in practice and judicial decisions regarding how this matter is determined. Specifically; that insolvency is clearly evident is accepted in cases where the economic situation is known to those who knew the deceased, their relatives, and those they did business with. However, sometimes the deceased may hide the fact that they have too much debt from the people around them. In this case, it is necessary to determine that the estate is insolvent. In a lawsuit for the legal rejection of an inheritance at the civil court of first instance, the judge reaches a decision by examining the insolvency of the estate with evidence and witnesses.
The deceased having gone bankrupt, a concordat decision having been issued against them, a certificate of grace having been issued, or an attachment having been placed on assets can be shown as examples of evidence forming the basis for proving insolvency. A concordat decision given for a company established by the deceased through a partnership does not result in the deceased being insolvent. The legislator specifically seeks the result of the deceased themselves having gone bankrupt.