What a person leaves behind on death is not always apparent. Heirs frequently do not know precisely which immovable properties the deceased owned, which banks he or she dealt with, or how much debt was outstanding. The action for the determination of the estate is the judicial procedure operated to remedy exactly this lack of information: the deceased’s property is established in all its components and placed under protection by being entered into an official record.
In this avenue, which is open only to heirs, the court establishes the assets and liabilities existing as at the moment of death and draws up the inventory of the estate. The action does not, however, produce any ruling on how the estate is to be divided and among whom. The picture that emerges at the end of the proceedings answers only the question “what did the deceased own and what did he or she owe”; the manner of division falls outside the subject matter of the judgment.
Upon death, the property passes automatically to the statutory heirs together with both its positive and its negative components. Where the scope of that transfer is uncertain, the means by which the heirs may protect themselves is to bring an action for determination and to request that an inventory be drawn up as a protective measure. This forestalls disputes that might otherwise arise, establishes the true size of the estate, and places the calculation of shares on a sound footing. In this briefing note we examine the scope of the estate, the methods of determination, the procedure for drawing up the inventory, and the legal consequences of the action.
The Concept of the Estate
The estate is the concept describing the totality of the property components left behind by the deceased. That totality does not consist of positive values alone; all of the assets and liabilities the person leaves behind make up the estate. The deceased’s property and receivables as at the moment of death constitute the asset side, and his or her obligations the liability side. In short, the estate is the name given to the inheritance of the deceased in its entirety.
The estate performs a decisive function in the division of the inheritance. Once the scope of the estate has been established and its value calculated, the heirs take the share falling to them out of that totality. The estate is documented in legal proceedings; the purpose of recording and administering it is to enable the inheritance to be distributed equitably.
Assets Falling Within the Scope of the Estate
We have said that the estate denotes the property remaining on death. In practice, the principal items falling within that scope are as follows:
- Intellectual property rights: Trade marks, patents, designs and copyrights registered in the name of the deceased form part of the estate.
- Receivables and obligations: The deceased’s receivables from third parties and the debts he or she has assumed are assessed together. A debt owed by a person to the deceased, for instance, appears on the estate side as a receivable and passes to the heirs.
- Capital market instruments: Shares, bonds, notes and similar securities fall within the scope of the estate.
- Deposits and financial assets: Bank accounts, time deposits and investment accounts opened in the name of the deceased are added to the estate.
- Movables: Items in the deceased’s possession also form part of the estate. Motor vehicles, cash on hand, gold ornaments and jewellery, household goods, electronic devices, paintings and pieces of antique value may be counted in this group.
- Immovables: Residences, business premises, plots of land and other real property registered in the name of the deceased constitute the most visible item of the estate.
This enumeration is illustrative; it should be noted that there is no closed list of the assets capable of falling within the estate.
Definition of the Action for Determination of the Estate
The action for the determination of the estate is a judicial procedure conducted with a view to establishing, completely and accurately, the property remaining after a person’s death.
Recourse is generally had to this avenue where there is a dispute among the heirs or where no reliable information can be obtained about the deceased’s assets. The relevant provisions are set out in detail in Article 589 et seq. of the Turkish Civil Code No. 4721. Within the framework of those provisions, in an action brought by the statutory heirs the court employs more than one instrument in order to bring the property to light: the evidence submitted to the file is examined, letters of request are written to the relevant institutions, an on-site examination is carried out where necessary, and expert reports are obtained. The common purpose of all these instruments is to render the deceased’s assets visible and to secure the rights of the heirs. The court determines the estate accurately in the light of the evidence gathered and the expert opinions.
In the proceedings, the asset items are first established in detail. This stage involves establishing the value of movable and immovable property, bank accounts, investments and other proprietary rights. Thereafter, liability items such as debts and funeral expenses are deducted from that figure in order to arrive at the net estate.
Once the estate has been established, its monetary value is calculated on the basis of the prices prevailing on the date on which the succession opened. This method ensures that the property is assessed according to the market conditions of that period.
It must be emphasised that this action is purely an action for determination; no ruling may be given at the end of the proceedings as to how the estate is to be divided. The function of the action is to establish the property accurately and to protect the rights of the heirs. Division is a separate stage; the heirs may conclude a separate agreement on division among themselves, or the division may be carried out in accordance with the procedures laid down by law.
Consequences of the Action
The determination made at the end of the proceedings relates solely to the deceased’s property; it does not have the effect of dividing the inheritance automatically. In order for the heirs to carry out the division, they must obtain a certificate of inheritance and separately conduct the transactions required for the transfer of the assets in question. Where the parties cannot reach agreement, an action for the dissolution of co-ownership may be brought in order to secure a fair division.
The principal consequences of the action may be summarised as follows:
- Elimination of potential disputes: Since recourse is had to this avenue precisely where the property cannot be known in full, the determination judgment cuts off the source of disputes that might arise later. Once the scope has been clarified, the ground for argument among the heirs largely disappears.
- Entry of the inheritance into official records: The data obtained as a result of the determination allow the inheritance to be entered in official documents. On the basis of that determination, the heirs may initiate the necessary registration procedures.
- Creation of a basis for division: The information emerging from the proceedings establishes the basis for the calculation of how the inheritance is to be divided. This data is used in establishing the value of the inheritance and the rights of the heirs.
- Protection of the heirs’ rights: The action is intended to secure those entitled. Once a clear picture of the property has been obtained, the heirs may defend their rights by reference to that picture.
- Complete determination of the estate: This is the principal objective of the procedure. As a result of the research and examinations it conducts, the court establishes the assets and liabilities and calculates the net value of the estate.
Determination of the estate is a critical step in enabling the heirs to obtain information about the property and to protect their rights. The judgment does not, however, contain any ruling on division; the sole objective is the determination of the estate. Division is a separate stage, carried out either by the will of the parties or in accordance with the relevant statutory provisions.
For details on how the shares and proportions of the heirs are established, reference may be made to our note entitled “What Is a Certificate of Heirship? The Certificate of Inheritance”.
How Is the Property Established?
Establishing the Assets
In an action for determination, the court investigates the deceased’s assets by means of letters of request sent to the relevant institutions and enters the results obtained into the record. Property that cannot be preserved is sold during the proceedings and converted into money. Where the deceased held cash, it is transferred to an account opened by the court. Gold ornaments are taken into the court’s safe, while the remaining items are left in the charge of a judicial custodian for the duration of the action.
The following steps may be followed in establishing the assets:
- Collection of documents and information: The procedure begins with the gathering of data concerning the deceased’s assets. Land registry records, vehicle registration documents, account statements, share and bond certificates, debt instruments, insurance policies, wills, promissory notes, tax returns and similar financial documents are collected within this framework.
- Valuation: The monetary value of each item in the estate is established. Criteria such as property valuation for immovables, second-hand market prices for vehicles, and current market value for financial instruments may be used. Where it considers it necessary, the court will have a valuation report prepared through court-appointed experts in the relevant field.
Establishing the Liabilities
In establishing the asset and liability items, the court turns first to the statements of the heirs and to the information available. The heirs set out before the court the assets known to them. The proceedings are not, however, confined to those statements; the judge deepens the investigation himself or herself by writing letters of request to such authorities as he or she considers appropriate. Within this framework, an attempt is made to reach the deceased’s creditors so that the liability picture may be assembled.
The steps that may be followed in establishing the liabilities are as follows:
- Compilation of obligations: The deceased’s debts are first gathered together. Those debts may arise from bank loans, mortgages, credit card balances, tax obligations, debt instruments, legal undertakings and other financial responsibilities. The relevant documents and information may be obtained from the heirs, from financial institutions and from other persons party to the matter.
- Classification of obligations: The debts compiled may be dealt with in two groups, as priority debts and secondary debts. Among the debts arising in the period before death, those ranking higher are treated as priority debts; tax debts, mortgages and legal obligations are examples of this group. The remainder are characterised as secondary debts and are paid once the priority debts have been met.
Drawing Up the Inventory of the Estate
The drawing up of the inventory is governed by Article 590 of the Turkish Civil Code No. 4721. Under that provision, where a request is made within 1 month of the date of death, the judge of the Civil Court of Peace may order that an inventory of the estate be drawn up.
Article 589 of the same Code, for its part, provides for the drawing up of an inventory as a protective measure. The purpose of this measure is to ensure that the components making up the estate are established as at the date of death, thereby creating a source to be relied upon in any disputes that may arise later and making it possible to ascertain the position of the estate at the moment of death. As a rule, the determination procedure is not subject to any time limit; it may be requested so long as taking the measure has not become impossible or pointless and the estate has not been divided.
Accordingly, once the court has completed the stages described above and established the assets and liabilities, it proceeds to the inventory stage. The components belonging to the estate are established and each is recorded by being entered individually in the inventory of the estate. Where there are items that cannot be preserved, they are sold and converted into money.
An heir who contends that an asset entered in the inventory belongs not to the estate but to him or her may raise that contention by bringing an action for recovery of property. In such an action, the heir may request that the item he or she proves to belong to him or her be removed from the estate and delivered to him or her.
Courts with Subject-Matter and Territorial Jurisdiction
As regards subject-matter jurisdiction, under Article 590 of the Turkish Civil Code No. 4721 the competent judicial authority is the Civil Court of Peace. It falls to that court to assess requests for the drawing up of an inventory and to conduct the procedure.
As regards territorial jurisdiction, the Civil Court of Peace at the deceased’s last place of domicile has jurisdiction. Where the deceased’s last place of domicile was abroad, the court of the place in Türkiye where the property is located is regarded as having jurisdiction.
The Position as to Limitation Periods
The right of inheritance arises only on the death of the deceased. Consequently, no action based on a right of inheritance may be brought while the deceased is alive.
A request for the determination of the estate may be advanced from the moment of death. This action is not subject to any preclusive period or statute of limitations; it may be brought at any time.
Litigation Costs and Legal Fees
The costs encountered in an action for determination consist essentially of the expenses arising in the course of the proceedings. Court costs comprise items covering official transactions, the submission of evidence and the examination by court-appointed experts. Legal fees, for their part, are the amounts paid by the heirs to a lawyer for the conduct of the action.
The amount of these items varies from case to case and according to the lawyer’s terms. Among the determining factors are the complexity of the dispute, the length of the proceedings, the experience of the lawyer and the tariffs in force. On the function performed by a lawyer in inheritance disputes, our note entitled “Inheritance Lawyer – The Role and Importance of the Lawyer in Inheritance Actions” may be consulted.
In conclusion, the cost and fee items are not fixed; they vary according to the nature of the particular case and the factors listed. It is advisable for the heirs to discuss this matter with their lawyer in advance and reach agreement on it.
Frequently Asked Questions
How is the division carried out after the determination judgment?
Once the estate has been determined, the first step the heirs must take is to obtain a certificate of inheritance. Where there is agreement among them, the inheritance may be divided by agreement. If a dispute arises as to the substance of the division, recourse must be had to an action for the dissolution of co-ownership. For details on this subject, reference may be made to our note entitled “Action for the Dissolution of Co-Ownership”.
How is an estate division agreement concluded?
Where the parties reach agreement on how the assets in the estate are to be divided, an estate division agreement results. In that case, a contract determining the procedure for division is concluded among the statutory heirs. Although execution of the contract before a notary is not a condition of validity, it should be made in notarised form in order to strengthen its enforceability and to prevent difficulties later.
How long does the action take?
The length of the proceedings varies according to more than one factor. The complexity arising from the number of asset and liability items or from ignorance of them, the process of gathering evidence, and the degree of contention between the parties directly affect that period.
Straightforward actions for determination in which there is no dispute between the parties may be concluded relatively quickly. Contested files, by contrast, take longer. In such actions the compilation of evidence, the holding of hearings, the obtaining of expert opinion and the search for settlement between the parties may prolong the procedure.
Since each file is assessed on its own circumstances, it is difficult to state a general period. The time to completion will vary according to the complexity of the dispute and the caseload of the court concerned.
What are the outcomes of the action?
The outcomes that may emerge from the proceedings are as follows:
Determination of the estate: The principal purpose of the procedure is that the deceased’s estate be set out clearly. The assets and liabilities are established and an inventory of the estate is drawn up.
Actions for recovery of property: Where an asset entered in the inventory gives rise to contention among the heirs, an action for recovery of property comes into play. In such an action the heir applies to the court in order to prove that the recorded item belongs to him or her and to request that it be delivered to him or her.
Inheritance shares and division of property: The action for determination is a critical step as regards the establishment of the assets and liabilities, and information about the heirs and their shares also emerges in the course of the proceedings. The action is not, however, one brought for the purpose of establishing the shares definitively.
The outcomes may vary according to the circumstances of each file and the course of the proceedings. The effects of the action therefore differ according to the details of the particular case.
Independent Legal Assessment
Although at first sight determination of the estate may appear to be no more than an inventory exercise, it is an initial step that shapes the course of inheritance disputes. Recording the position as at the moment of death in official form creates the evidentiary basis for any subsequent actions for abatement, for simulation, for the division of the inheritance or for the dissolution of co-ownership. Framing the request for determination narrowly may therefore weaken the pursuit of rights at a later stage.
The problem most frequently encountered in practice is that the heirs notify the court only of the items known to them and the investigation remains confined to those statements. Yet since the court has the power to investigate of its own motion, it should be planned from the outset which institutions letters of request are to be addressed to.
In a particular file, the following matters should be given priority:
- Assessing whether a request for the drawing up of an inventory is to be advanced within the 1-month period following death
- Determining comprehensively the letters of request to be written to institutions such as the land registry, the traffic registration authorities, banks, the Social Security Institution (SGK) and the tax office
- Requesting protective measures in good time in respect of movables that are difficult to preserve and of gold ornaments
- Reviewing the option of an action for recovery of property where a personal right is claimed over an asset included in the estate
- Emphasising expressly in requests for court-appointed experts that valuation must be carried out as at the date of death
- Correctly determining the court with jurisdiction from the outset in estates with a foreign element
Independent Legal provides advisory services and conducts litigation at every stage of inheritance law, from the determination of the estate through the inventory procedure to subsequent disputes over division.