True disclaimer of inheritance is the ability to refuse the inheritance unconditionally within 3 months from the death of the inheritor, which the Turkish Civil Code provides to the heirs. The heir is freed from the obligations of a debt-ridden estate due to this chance. However, the rejected inheritance spreads to the descendants of the heir who rejects the inheritance. The purpose of the legislator with this provision is to protect the descendants of the heir, who has completely rejected the inheritance with his own choice, and could not make his own decision. Because the actual refusal of the bequest is frequently made to get rid of a debt-ridden estate, it can occasionally be done due to personal preferences. If the descendants of the inheritor consist of adult individuals, he can accept the inheritance as well as make the refusal of the inheritance together with the original heir. However, our article's focus is on the legal process to be followed if the heir's descendant is a minor.
True Disclaimer of Inheritance and Consequences
The true disclaimer of inheritance is regulated in Articles 605 and the following of the Turkish Civil Code. The statutory and named heirs are entitled to disclaim the inheritance passing to them. There is a presumption of a disclaimer if at the time of his or her death the deceased had been officially declared insolvent or was manifestly insolvent. (TCC 605)
The time limit for a disclaimer is three months. For statutory heirs, this limit begins on the date on which they learned of the death, unless they can show that they did not learn of their succession rights until later, and for named heirs it begins on the date on which they received official notification of the testator’s disposition. (TCC 606)
An heir must declare his or her disclaimer orally or in writing to the civil court of peace. It must be unconditional and without reservation. The judge of the civil court of peace keeps an official record of disclaimers. (TCC 609)
Where the deceased has not made a testamentary disposition and one of two or more heirs disclaims the inheritance, his or her share of the estate passes to the other heirs as if he or she had predeceased. Where the deceased has made testamentary disposition, any share of the estate disclaimed by a named heir passes to the testator ’s nearest statutory heirs, unless other intentions on the part of the testator are evident from the disposition. (TCC 611) Accordingly, if the refuser has descendants, the rejected shares pass to them; if there is no descendant, the shares of the other heirs of the inheritor will be increased; because the rejected inheritance shares will then pass to them. For example, if A of M's three children named A, B and C rejects the inheritance, the inheritance shares of B and C increase from 1/3 to 1/2. On the other hand, if the rejecter has a descendant, the descendant becomes his successor. In the above example, if A had a child named D, D would succeed A and receive his 1/3 inheritance, so B and C's share of inheritance would not change.
As can be seen, the law has made the real rejection of the inheritance subject to a period of time and stipulates that the inheritance share of the heir who rejects the inheritance will be transferred to the nearest legal heir.
Status of the Minor Descendant in True Disclaimer of Inheritance
As it is known, in our legal system, persons who have not completed the age of 18 are considered minor and these persons use their transactions and actions through their legal representatives and therefore through their parents who have custody. However, according to TCC 426/2, , if the interests of the legal representative and the minor or the restricted person conflict in a job, the relevant person of the guardianship authority or the representative trustee must be appointed ex officio.
In the case of real disclaimer of the inheritance, since there is a conflict of legal interests between the mother and the children, the court should appoint a trustee to the children, receive a statement from the trustee in the direction of the disclaimer for inheritance on behalf of the children and take action in this way. In this instance, the heir applies to the Civil Court of Peace with a request for the actual rejection of the inheritance. After the actual rejection of the inheritance has been determined and registered, the heir reapplies for the actual rejection of the inheritance for the heritage for which he is the legal representative. After receiving the application, the court gives time to file a lawsuit for the appointment of a trustee to the minor. In the petition to be filed for the appointment of a trustee, the legal representative may propose a trustee. This person is required to be impartial toward the minor and free from any conflicts of interest. In the absence of such a request, the court will designate the trustee on an ex officio basis.
When the appointed trustee requests the determination and registration of the disclaimer of the inheritance in the name of the minor, since the refused inheritance is in debt and the minor does not face the threat of foreclosure due to this situation in the future, the refusal of the inheritance is determined and registered in terms of minor descendants.
As a result; Although the parents, who are the legal representatives, represent the minor in all their transactions and actions. Since there is a conflict of interest between the legal representative parents and the minor, who is the lower lineage of the heir who requests the disclaimer of interest, disclaim of inheritance must be made with the trustee to be appointed to the minor.
Ece Perçinkaya LL.M.
1. Dural,Mustafa / Öz, Turgut, Law of Inheritance, 2. Publication, Istanbul, Filiz Bookstore, 2003.
2. İmre, Zahit / Erman, Hasan, Law of Inheritance, 7th Revised Edition, Istanbul, Der Press, 2010.
3. Court Of Cassation, 2. C.D. 2012/12868 Principle-2013/5514 Decision