What is Heritage?
All legal relations that pass to the heirs upon the death of the inheritor and are not related to the person of the inheritor are called heritage.
Although heritage means roughly the same as property, some rights and unconditional everything that is considered property cannot be included in the scope of inheritance.
Although a number of rights and obligations related to the person of the inheritor and stated to be terminated in the event of his death are considered as assets of the inheritor, not all of them are included in the inheritance. If we need to give an example of this; the usufruct right is a right in kind that does not belong to the estate in the sense that it will end with the death of the right holder
What is the Purpose of the Heritage Determination Case?
In the event that the court is asked to determine the existence or absence of a right or legal relationship, or to determine whether a document is forged, persons with legal benefits may file a case for determination. (See: HMK md.106) In this way, persons will ensure that the legal relations, the existence or absence of which they claim, are determined by the court through litigation.
What is the Case for the Determination of Heritage?
It is not always possible for the assets of the inheritor to be fully and accurately known by the heirs. In this regard, although the heirs can access some information through their own research, they may face many difficulties in practice.
For example, an estate that belonged to the dead man to the Land Registry Office of research relevant to the outgoing about an heiress, how can access records by taking advantage of the principle of publicity, while a long and intensive effort for it, with enough information edineneme my status will be in question. In this research process, issues such as probate order, revocation of inheritance assets are sometimes requested in advance, and the right of the heir to prefer the title deed cancellation lawsuit process as a priority may be damaged due to collusion in cases of refusal of inheritance or hijacking of property when necessary by investigating the inheritance. In particular, in the case of the existence of a temporary transaction related to real estate or the presence of previously made inter-right acquisitions such as forgiveness, retrospective land registry records related to real estate will be needed. It will be quite difficult for such a transaction to be made by the heir.
Apart from all of these, the unknown assets of the inheritor may also be in question. In order to make a full and accurate calculation of the estate, the opening of such a case will ensure the protection of the interests of the heirs.
T.C. SUPREME COURT 8. Legal Department 2013/13009 E. , 2014/17643 K.;
”.. heritage determination cases are in the nature of evidence determination and are not in the nature of ration cases. For this reason, the work that must be done by the court is to identify and record the elements of assets reported to belong to the estate, to ensure that they are sold and converted into money, if there are those that cannot be stored, and for securities, money, currency, etc. if any, deposit them in the bank as tereke assets; gold, etc. if there are trappings, take them to the tereke court safe and save them; on the other hand, it consists of handing over the other items to the related person or a third person in the capacity of a trustee and thus showing the identified items in the decision. It is also possible to hand over some or all of the elements of the assets of the estate to an heir by obtaining the consent of all the heirs. It cannot be decided in a way that will result in the division of the estate without the full consent of the heirs. Of course, in this way, each heir has the right to file a claim for ration, claiming that the elements of his assets taken into the escrow account of the estate are not included in the estate and belong to him, and; if the case is successful, it is possible for the heir to request that the property element be handed over to him by the tereke court..”
Who Can Sue for the Detection of heritage?
In detection cases, the existence of the legal benefit of the person who wants to be identified in the matter he wants to be identified is sought. In this regard, the heirs can file this lawsuit regarding the determination of the estate, as well as in case of a legal obligation, it may be possible to file this lawsuit ex officio.
Until the moment of the division of the estate, the estate is jointly owned by all heirs. For this reason, the approval of other stakeholders is essential for each saving to be realized on the values that make up the assets.
Despite this, although each stakeholder has the right to file a claim for the determination of the estate upon the determination of the estate, there is no need for the approval of another heir.
How does the Research and Calculation of heritage Take Place?
When calculating the inheritance of the inheritor by the court, priority is given to the statements and claims of the heirs. In this direction, it will be a priority to access information and documents to the official records regarding the assets and liabilities whose existence is claimed. Of course, the court will not be limited to these, but will conduct a comprehensive search of the trustee’s assets.
T.C SUPREME COURT 3.HD, 2015/4790E., 2016 / 4296K., 21.03.2016 T.;
”.. by the court; first of all, the inheritance of the inheritance (intra–assignment – non-assignment) should be determined by applying to the declaration of the parties’ deputies (HMK. md. 31), information about the estate within the scope of movable and immovable assets, documents and records should be celbedilm file, and then on the basis of these principles, tailored to meet the above-mentioned report from expert witnesses on issues tenkis ,taking into account you need to determine the net estate tenkis hard through rate..”
Apart from these, if the heirs / heirs have claims to the assets belonging to the trustee, on which they think that there is a mutual right-hand gain, such as agreement or forgiveness, the court will also evaluate this. In other words, movable or immovable property belonging to the inheritor will be determined and necessary precautionary measures will be taken if the conditions occur.
For example; If there is a claim in this direction on a real estate, the court will be able to ensure that the historical land registry records related to this real estate are also included in the court file with a petition that it will write to the relevant land registry office. An active / passive inquiry will be made in the title deed together with the request. The necessary calculations will be made by depositing these documents, which will be subpoenaed to the case file, to an expert expert in the field, and as a result of the calculations, the terekey will be determined. In fact, after the determination of the assets, it may be thought that there is no need for an expert at first glance. However, the valuation of existing assets is a matter that will require expertise.
T.C. SUPREME COURT 2.HD., 8487-9834, 23.06.2005 T.;
”..In order to mention that the hidden shares have been damaged, the issue of earning must be known with all of the tereke and non-earning tereke. For this purpose, all records and documents related to tereke should be brought to the file. The title deed records and other documents of the immovable properties that are not assigned to the Muris are determined by the court ex officio..”
when determining the heritage, the active and passive values of the property are determined.The net heritage is calculated by subtracting all passive values from all active values. Net heritage is the portion to be distributed to the heirs.
While values such as securities and real estate goods, term-demand receivables and their interest and the like constitute the asset of the property, the passive part of the property will be formed by the debts of the buyer and some expenses.
*Supreme Court 2. in a decision of the civil chamber, he referred to the calculation of the terekenin. This decision is as follows.
T.C. SUPREME COURT 2.LEGAL DEPARTMENT 2003/5672E., 2003/8996K., 17.06.2003T
“These are the mameleki assets left by the inheritor on the date of his death and the gains he has made subject to restitution and criticism. These constitute the heritage asset. Expenses such as debts of the inheritor, one-month alimony of dependents, keeping the heritage book, sealing, funeral expenses are also passive. The deduction of the specified debts from the asset constitutes the net heritage. after the heritage is determined in this way, it is necessary to determine the amount of the heritage in monetary terms by evaluating it according to the prices on the date of opening (MK.454). 453 of the Civil Code of the inheritor. the reserve determined in the article is calculated on the basis of this figure, which is determined whether it encroaches on the share. If the savings rate has been exceeded, if it is necessary according to the nature of the savings, it should be determined by taking into account objective (objective) and subjective (subjective) elements whether there is a intention to damage the reserved shares in the earning process. Because it cannot be said that there is a hidden share in every gain that exceeds the savings rate.”
in Which Court will the Case for the Determination of heritage be Opened?
Although the determination of the estate case is a non-contentious judicial matter and the general duty in non-contentious judicial affairs belongs to the Magistrate’s Courts, the last residence address of the inheritor before death will determine the jurisdiction.
Statute of Limitations in the Case of Determination of heritage
heritage’s request for a precautionary determination is not subject to the deadline. Detection can be requested at any time.
T.C SUPREME COURT 2. HD E. 2004/15828 K. T. 2005/1411 7.2.2005;
” heritage’s precautionary determination request does not depend on the duration. Detection can be requested at any time. It is not correct to reject the determination request with a bet because the period of one month has passed without taking this aspect into consideration.”
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