The period for renouncing an inheritance denotes the interval within which an heir may exercise the right of renunciation. The Turkish Civil Code has fixed that period at three months. Statutory heirs must take the step of renunciation within three months of the death of the deceased. Once the period has elapsed, the right of renunciation can no longer be exercised and the heir is deemed to have accepted the inheritance.
The length of the period does not differ as between statutory and appointed heirs; what differs is the moment from which the three-month preclusive period begins to run. For statutory heirs the starting point is the date on which they learn of their status as heirs, whereas for heirs appointed by a will it is the moment at which the disposition upon death is officially notified to them.
The renunciation of inheritance, also referred to in practice as disclaimer of an estate, expresses the heir’s unwillingness to assume the rights and debts arising from the estate.
The Distinction Between Actual Renunciation and Renunciation by Operation of Law
Actual renunciation is the heir’s rejection of the inheritance by a declaration of his own intention. Since an heir who takes this course does not assume the rights and debts arising from the estate, he can advance no claim over the inheritance. He therefore remains outside the division and cannot assert any entitlement to the assets of the estate.
Renunciation by operation of law, by contrast, arises where it is plainly apparent, or has been officially established, that the deceased was unable to meet his debts at the moment of death. In such a configuration the inheritance is deemed to have been renounced by force of the statute. If the assets existing at the moment of death are insufficient to meet the debts, the conclusion is reached that the deceased was insolvent.
For details of the subject as a whole, the study entitled Renunciation of Inheritance may be consulted.
The Period for Renouncing an Inheritance
The Period in Actual Renunciation
Article 606 of the Turkish Civil Code has fixed the period for renunciation at three months. Since this period is preclusive in nature, it can neither be suspended nor interrupted. For a declaration of renunciation to be regarded as having been made in time, it must have reached the Civil Court of Peace before the three-month period expires. Compliance with the period is examined by the court of its own motion.
In certain exceptional cases, however, the period may be extended. A request for extension is addressed to the judge of the Civil Court of Peace. Those exceptional cases are dealt with separately below.
The Period in Renunciation by Operation of Law
An estate being over-indebted means that the assets of the deceased at the moment of death are insufficient to meet his debts. In such a case the inheritance is deemed to have been renounced by operation of law; that is to say, the heirs are treated as having renounced it even if they make no declaration at all. For this reason no limiting period such as three months is prescribed in respect of renunciation by operation of law.
The Moment at Which the Period Begins
For Statutory Heirs
Statutory heirs who wish to renounce must act within three months of the date on which they learn of the death of the deceased. As a rule the period begins to run upon death. Where, however, an heir learns that he is an heir at a date later than the date of death, the starting point is not the death but that date of knowledge.
Turkish Civil Code, Art. 606
"An inheritance may be renounced within three months. This period begins to run, for statutory heirs, from the date on which they learned of the death of the deceased, unless it is proved that they learned of their status as heirs at a later date; ……………………..."
For Appointed Heirs
For persons appointed as heirs by means of a will, the three-month period is calculated from the date on which the disposition is officially notified to them.
Turkish Civil Code, Art. 606
"An inheritance may be renounced within three months. ……………….. for heirs appointed by a will, it begins to run from the date on which the disposition of the deceased was officially notified to them."
The procedure by which that notification is to be made is regulated in Article 597 of the Turkish Civil Code under the heading of service on interested parties:
Turkish Civil Code, Art. 597
"A certified copy of the parts of the will concerning them shall be served by the judge on each of the persons entitled under the inheritance, the cost being borne by the estate. To those whose whereabouts are unknown, the parts of the will concerning them shall be served by way of public announcement."
For an Heir Whose Right of Renunciation Passes to His Own Heirs
Article 608 of the Turkish Civil Code regulates this possibility as follows:
Turkish Civil Code, Art. 608
"The right of renunciation of an heir who dies without having renounced the inheritance passes to his own heirs. For these heirs the period for renunciation begins from the date on which they learned that the inheritance had passed to their own deceased. That period shall not, however, come to an end before the expiry of the period accorded to the heir for renouncing the inheritance passing from his own deceased. Where, as a result of renunciation, the inheritance passes to persons who were not previously heirs, the period for renunciation begins to run for them from the date on which they learned that the inheritance had been renounced by the previous heirs."
Where an Inventory of the Estate Has Been Taken as a Protective Measure
Various measures may be taken, at the request of the heirs or on the judge’s own motion, in order to preserve the assets of the deceased and ensure that they reach those entitled. One of these is the taking of an inventory of the estate, directed at establishing the assets left behind. Once that determination is complete, the judge of the Civil Court of Peace notifies the heirs. Every statutory and appointed heir who receives that notification may exercise the right of renunciation within 3 months of the date of service.
The Period in Renunciation for the Benefit of Subsequent Heirs
Article 614 of the Turkish Civil Code makes the following provision on this matter:
Turkish Civil Code, Art. 614
"When renouncing the inheritance, the heirs may request, before the liquidation, that the heirs coming after them be asked whether they accept the inheritance. In that event the renunciation shall be notified by the judge of the Civil Court of Peace to the subsequent heirs; if they do not accept the inheritance within one month, they shall be deemed to have renounced it. Thereupon the inheritance shall be liquidated in accordance with the provisions on bankruptcy, and the values remaining at the end of the liquidation shall be given to the earlier heirs."
Extension of the Period for Renunciation
The basis for extending the period is Article 615 of the Turkish Civil Code:
Turkish Civil Code, Art. 615
"Where important grounds exist, the judge of the Civil Court of Peace may extend the period for renunciation accorded to statutory and appointed heirs, or may accord a new period."
The statute does not specify one by one which circumstances are to be regarded as important grounds. The acceptance or rejection of the request lies in the discretion of the judge of the Civil Court of Peace. In making that assessment the judge may treat circumstances such as illness, an accident, or the impossibility of establishing the assets and liabilities of the estate in full as important grounds, and may order that the period be extended.
The Position of an Heir Who Dies Without Exercising the Right of Renunciation
Article 608(1) of the Turkish Civil Code contains the following provision:
Turkish Civil Code, Art. 608(1)
"The right of renunciation of an heir who dies without having renounced the inheritance passes to his own heirs."
The power of renunciation is accorded to statutory and appointed heirs. If a person who is contemplating renouncing an inheritance dies before he is able to exercise that right, the power passes to the heir who takes his place. In such a case the heir taking his place has two separate possibilities of renunciation: one is to renounce the inheritance left by his own deceased, the other is to renounce the inheritance which had passed to his own deceased and which has come to him indirectly because he takes that person’s place.
Article 608(2) of the statute provides as follows:
Turkish Civil Code, Art. 608(2)
"For these heirs the period for renunciation begins from the date on which they learned that the inheritance had passed to their own deceased. That period shall not, however, come to an end before the expiry of the period accorded to the heir for renouncing the inheritance passing from his own deceased."
Two separate periods emerge from this provision.
The first of these is the three-month period for renunciation accorded to the heir. Within that interval the heir may renounce both his own inheritance and the inheritance that has come to him indirectly.
The second is the moment at which he learns that the inheritance in respect of which he holds a right of renunciation has passed to his own deceased. This criterion acquires particular importance where the second inheritance comes to be known only subsequently; the three-month period begins to run from that moment of knowledge.
The Passing of the Right of Renunciation to Persons Who Were Not Previously Heirs
Article 608(3) of the Turkish Civil Code makes the following provision:
Turkish Civil Code, Art. 608(3)
"Where, as a result of renunciation, the inheritance passes to persons who were not previously heirs, the period for renunciation begins to run for them from the date on which they learned that the inheritance had been renounced by the previous heirs."
Some of the statutory heirs may have exercised the right of renunciation. In that case the inheritance passes to the other statutory heirs; as regards the person renouncing, the position is as though the entitlement of the other heirs had never arisen. If, for example, the father renounces the inheritance following the death of the grandfather, the grandchild becomes directly entitled to the estate. If the grandchild also wishes to renounce, he must exercise that right within three months of the date on which he learned of his father’s renunciation. The period for the remaining heirs thus begins to run from the moment at which the previous heirs carried out the act of renunciation.
By contrast, it is not possible for an heir, while renouncing the inheritance left by his own deceased, at the same time to accept the inheritance that had passed to that deceased. This is because the first inheritance reaches him as a component of the estate of the deceased who died without exercising the right of renunciation.
For a general examination of the scope of the law of succession, of the details of the concept of succession and of the legal rights and obligations of those concerned, the study entitled What Is the Law of Succession? may be consulted.
Independent Legal Assessment
The problem most frequently encountered in the exercise of the right of renunciation stems not from the expiry of the period but from a miscalculation of the moment at which it begins. Because the three-month period is preclusive in nature and is taken into account by the court of its own motion, the error is beyond remedy. For this reason the distinction between the date of death, the date on which the status of heir became known and the date of service must be documented from the outset.
In files where the estate is over-indebted, although renunciation by operation of law is available, it must not be overlooked that an heir’s carrying out of transactions relating to the estate may be construed as acceptance of the inheritance.
In a concrete case it is advisable to pay particular attention to the following points:
- Ensuring that the declaration of renunciation has actually reached the Civil Court of Peace before the period expires
- Determining the starting date separately according to the distinction between statutory and appointed succession
- Where the assets and liabilities of the estate cannot be established within the period, submitting a request for extension in good time
- Assessing the two separate periods together in respect of heirs to whom the right of renunciation has passed
- Informing in advance those heirs of a subsequent degree to whom the inheritance will pass as a result of the renunciation
Independent Legal provides advisory services in the preparation of applications for the renunciation of an inheritance and in the conduct of disputes arising from the over-indebtedness of an estate.