Inheritance law regulates the transfer of inheritance to heirs upon the death of the testator. In accordance with the universal succession principle of inheritance, the inheritance is transferred to the heirs in its entirety and automatically. During this transfer, the rights and receivables of the testator, as well as his debts, are transferred to the heirs. Heirs are personally responsible for the debts of the deceased, and their liability is unlimited.
If there is more than one heir, the debt obligation between the heirs is joint. Joint liability gives creditors the right to claim their receivables from any heir of their choice.
The joint responsibilities of the heirs arising from the debts of the deceased continue for five years from the sharing of the inheritance. This five-year period is not a statute of limitations and has a special character. Within the framework of general provisions, a ten-year statute of limitations applies to receivables from the estate.
The obligations of the heirs are not limited to the debts of the deceased; It also covers a broader area of liabilities such as estate debts. Both legal heirs and appointed heirs are responsible for the estate debts. This means that the heirs assume the financial obligations of the testator as well as the inheritance.
1. Basic Concepts and Principles
The principle of universal succession, which is one of the basic principles of inheritance law, refers to the complete and automatic transfer of the inheritance to the heirs upon the death of the testator. This transition includes the property and rights of the deceased, as well as his debts.
Articles 196 and following articles of the Turkish Code of Obligations No. 6098 contain general regulations regarding the transfer of a debt and the replacement of the debtor. According to these provisions, in order to transfer a debt to another person, an agreement must be made between the person who will take over the debt and the creditor.
During the transfer of the decedent's debts to the heirs, the debtor's change occurs automatically and in this process, there is no need to make a separate agreement between the creditors and the heirs regarding the transfer of the debt. This is a result of the principle of universal succession and the debts of the testator pass to the heirs without any additional process.
2. Who is Responsible for the Debts of the Inheritor?
According to Turkish Civil Code (TMK) Article 599/2, heirs are held personally responsible for the debts of the deceased. This responsibility includes legal heirs as well as heirs appointed by will. This responsibility of the heirs covers the debts of the decedent as well as other liabilities related to the estate.
3. Personal Liability of Heirs
Heirs are responsible for the debts of the deceased with their personal assets, and this liability is unlimited. That is, if the assets of the estate are not sufficient to cover the debts of the deceased, the heirs may have to pay the debts with their own assets.
The personal liability of the heirs for the debts of the estate is valid, except for some exceptional cases. The first exception is the formal liquidation of the estate; In this case, the heirs are not held responsible for the debts of the estate. A second exception is that the official book of the estate is kept and the inheritance is accepted according to this book; In this case, the liability of the heirs is limited to the debts specified in the book. A third exception is cases undertaken by the State; Here, the State is only responsible for the debts recorded in the book kept ex officio by the civil court of peace, and this liability is limited only to the estate.
4. Joint Liability of Heirs
Joint liability is the situation where more than one person is responsible for the entire debt. If the testator has more than one heir, the heirs are jointly responsible for the estate debts. This means that creditors have the right to claim the entire debt from any heir they wish. In accordance with joint and several liability, the heir who is obliged to pay the entire debt to the creditor cannot claim liability for more than his share. The internal compensation arrangement between the heirs is valid only between the heirs and does not affect the creditors.
4.1. Termination of Joint and Joint Liability
Joint liability ends in two cases according to the Civil Code: First, if the creditor consents to the division of the debt. If an agreement has been made between the heirs regarding the division of the debt and the creditor has consented to this agreement, the heirs will no longer be jointly and severally liable to the creditor. In this case, who will pay the debt and to what extent is determined by the agreement made between the heirs.
Secondly, five years have passed from the date of inheritance sharing. During this period, joint liability for debts arising after sharing ends after five years have passed from the date on which the debt becomes due.
5. Liability of the Heirs Regarding the Debts of the Estate
5.1. Responsibility of Heirs for Estate Debts Before Sharing the Inheritance
The Civil Code states that the heirs are responsible not only for the debts of the testator, but also for the debts of the estate. Estate debts have a broader scope than the debts of the testator. These debts also include expenses related to the estate after the death of the testator; For example, bookkeeping, sealing, funeral expenses and quarterly maintenance expenses of people living with the testator.
TMK Article 641/3 states that compensations provided for family members, especially adult children or grandchildren, will also be considered as estate debt. These compensations must be paid before the division of inheritance; However, if the financial situation of the estate is so bad that it is impossible to pay compensation, this payment will not be made.
The liability of the heirs is valid regardless of the source of the debt. Debts may be contractual or may arise from tort or unjust enrichment.
5.2. Responsibility of Heirs for Estate Debts After Sharing the Inheritance
Five years after the completion of inheritance sharing, joint liability between the heirs ends. During this period, the heirs become jointly and severally responsible for all debts to creditors.
TMK Article 649/3, each of the heirs has the right to request the payment or security of the estate's debts before sharing. If there is no such request from the heirs, the inheritance can be shared without paying the debts.
The heirs can divide the debts of the deceased among themselves by agreement between them. However, this agreement is valid only in the internal relations between the heirs and cannot be claimed before the creditors. This situation includes a mandatory provision stating that the heirs must be jointly and severally liable to the creditors for five years after the division.
6. Responsibility of the Heir in Case of Transferring His Share of Inheritance
The heir has the right to transfer his share of the inheritance to another heir or a third person. These transfers contain different provisions regarding how they affect the heir's liability to creditors.
6.1. Liability in Case of Transfer of Inheritance Share to Another Heir
An heir can transfer his share of the inheritance to another heir. However, this transfer process does not eliminate the responsibility of the transferring heir from the debts of the deceased. Even if the transferor heir has transferred his share of the inheritance, he remains jointly liable for the debts of the deceased for five years from the date of sharing the inheritance. During this period, the testator's creditors can still apply to the transferor heir and claim their receivables.
6.2. Liability in Case of Transfer of Inheritance Share to a Third Party
It is also possible to transfer the inheritance share to a third party, but in this case, the transferee does not give the third party inheritance status. The third person has the right to receive the goods belonging to the transferring heir, but he does not become responsible for the debts of the deceased. However, even if the transferring heir has transferred his share of the inheritance, he remains jointly liable for the debts of the deceased for five years.
TBK m. In accordance with the provisions of Article 202, the third person who takes over the inheritance share becomes responsible for the estate debts falling on his inheritance share from the moment he notifies or announces that he has taken over. However, this responsibility is not in the form of joint liability attributed to the heirs; The third person is only responsible for the debts corresponding to the share of the inheritance he inherited. This shows that the transferee is not responsible for all the debts of the testator, like the heirs.
7. Liability of the Heirs Arising from the Surety Debts of the Testator
The Civil Code limits the responsibilities of the heirs for the surety debts of the deceased. TMK m. According to Article 630, the debts arising from the guarantee of the testator must be written in a separate place in the book of the estate. Even if the heirs accept the inheritance unconditionally, they will be liable for such debts up to the amount that will fall to the creditor as a result of the liquidation of the estate within the framework of the bankruptcy provisions.
In order for the heirs to bear limited liability due to the surety debt, the official book of the estate must be kept properly and the surety debt must be stated in this book. If these conditions are not met, the heirs are deemed to have accepted the inheritance unconditionally and will be jointly and personally responsible for all receivables and debts of the estate, including the surety debt.
The responsibilities of the heirs due to the surety debt are valid if the principal debtor does not pay his debt. If the debt is paid by the main debtor or ends for another reason, the surety debt ends and the heirs have no responsibility for this debt.
8. Liability of the Heirs for the Tax Debts of the Inheritor
According to the Tax Procedure Law No. 213, heirs are responsible for the tax debts of the deceased in proportion to their share of the inheritance, not severally. This means that heirs will only be liable for tax debts up to their share of the inheritance.
Regarding inheritance and transfer taxes, these taxes are not considered estate debts. Each heir has the obligation to pay inheritance and transfer taxes equal to his share of the inheritance, and these taxes are paid according to his share of the inheritance. This ensures that tax liabilities are divided fairly among heirs and requires each heir to pay only his or her share.
9. Responsibility of Persons Who Lose Their Qualification as Heirs
Upon the death of the testator, the inheritance usually passes automatically to the heirs. However, some situations may cause heirs not to gain or lose their inheritance status. These situations include renunciation of inheritance, rejection of inheritance and deprivation of inheritance.
9.1. Liability in Case of Rejection of Inheritance
The heir has the right to reject the inheritance within three months from the death of the testator and from the date he learns that he is the heir. Rejection of inheritance has retroactive effect from the moment of death of the testator.
Rejection of inheritance is divided into two: real rejection and constructive rejection:
- True Rejection: Even though the heir has acquired the title of heir, he rejects this title of his own will. This means that the heir rejects the inheritance by making a clear statement.
- Judicial Rejection: If it is known that the testator was in difficulty of paying due to his debts before his death, the heir is deemed to have rejected the inheritance. This is an assumption accepted by law and is valid even if the heir does not have a clear statement of rejection.
As a rule, the heir who rejects the inheritance is not held responsible for the debts of the deceased. This means that rejection of inheritance completely relieves the heir from the obligations of the testator.
However, in case the inheritance is rejected in bad faith, there are various provisions in the law to protect creditors. The annulment of the malicious rejection may be requested by the creditors through a lawsuit, and in this case, there may be situations where the heir may be responsible for the debts despite the rejection.
9.2. Liability in Case of Renunciation of Inheritance
Waiver of inheritance is a contract made between the prospective heir and the testator, which includes giving up the right to inheritance that will arise in the future. This waiver is made before the inheritance is transferred to the heir. The person who renounces the inheritance is generally not held responsible for the debts of the estate, since he has not become an heir and the estate has not been transferred to him.
Waiver is divided into two: gratuitous and gratuitous:
- Considerable Waiver: The person who waives receives a certain benefit in return for his share of the inheritance.
- Gratuitous Waiver: The one who waives does not receive any compensation.
In both cases, the person who renounces is generally exempt from liability for the debts of the testator. However, in the case of a gratuitous waiver, in accordance with the Turkish Civil Code (TMK) Article 530, it is envisaged that, in certain circumstances, the person making the waiver may also be responsible for the debts of the decedent. If the estate cannot cover the debts at the time the inheritance is opened and the debts are not paid by the heirs, the renouncer and other heirs may be held responsible to the creditors.
The liability of the waiving person is limited to the amount of consideration he received, and this liability is only valid for considerations received within the five years before the death of the testator. If the waiving party received the consideration earlier than five years ago, then there will be no liability.
9.3. Deprivation of Inheritance
Deprivation of inheritance occurs in the presence of the situations specified in Article 578 of the Turkish Civil Code. These situations include serious crimes committed against the testator or serious insults against the testator. A person who commits one of these types of actions loses the right to inherit and therefore does not gain any rights or responsibilities regarding the inheritance. This means that the person is completely deprived of both the benefits of the inheritance and the debts of the inheritance.
10. Period and Statute of Limitations for the Responsibility of the Heirs for the Debts of the Testator
The joint liability of the heirs for the debts of the deceased continues for five years from the sharing of the inheritance. This period starts from the moment the inheritance sharing takes place. If the inheritance sharing is not done by agreement between the heirs but through a lawsuit, the period starts to run from the date the court decision becomes final.
This five-year period is not considered a statute of limitations. Receivables belonging to the estate are subject to a ten-year statute of limitations within the framework of general provisions. This indicates that creditors retain the right to claim their receivables for ten years.
11. The Heir's Right of Recourse to Other Heirs Who Pays the Debt of the Inheritor
Each heir is responsible for the relevant debt in proportion to his share of the inheritance. If an heir pays more than his share, he can appeal to other heirs for the excess amount he paid, that is, he can request compensation for the excess amount he paid.
However, in two cases this general rule does not apply:
1. Special Savings of the Testator: If the testator has specifically determined that a debt will be paid by a certain heir, with a death-related disposition, then the heir who pays the debt may not have the right to recourse to other heirs.
2. Special Agreement Between Heirs: If a special arrangement has been made between the heirs regarding the payment of estate debts, liability and right of recourse for the debt are determined according to the special agreement made, not according to the ratio of inheritance shares. This agreement, beyond general legal principles, determines how debts will be shared among the heirs.
These provisions were introduced to ensure that inheritance transactions are carried out in a fair and orderly manner by regulating the mutual responsibilities of heirs and the rights of creditors.
Frequently Asked Questions
1. Are the Heirs Responsible for the Personal Debts of the Testator?
No, heirs are not responsible for the personal debts of the deceased. Since these types of debts are directly related to the personal abilities or promises of the testator, they end with the death of the testator. For example, obligations of a personal nature, such as a painter's debt to paint an unfinished painting, do not pass on to the heirs and these debts end with the death of the testator.
2. Can Proceedings Be Made Against the Heir Before the Inheritance Rejection Period Ends?
After the death of the testator, the heir's right to reject the inheritance is valid for a period of three months. During this period, it is not clear whether the heir will exercise his right to reject the inheritance. Therefore, it is not possible to initiate debt proceedings against the heir until the rejection period expires. However, if the heir has a clear acceptance of the inheritance, then the prosecution process can be initiated.
3. Can Proceedings be Made Against the Inheritance Before the Inheritance Rejection Period Ends?
Yes, proceedings can be made against the estate before the inheritance rejection period expires. Even while the heirs' right to exercise their right of rejection continues, creditors can pursue the estate and seize the estate's assets. This is important to protect the rights of creditors because the rights of creditors on the assets of the estate can be secured without waiting for the rejection decision of the heirs.
4. Is the Liability of the Heirs Limited for Debts Arising from the Guarantee Agreement?
The responsibilities of the heirs for the debts of the deceased arising from the guarantee are limited. However, such a limitation does not generally apply to debts arising from the testator's guarantee agreements or other personal guarantees. In such debts, heirs may be fully liable up to the amount recorded in the estate's ledger. This ensures that creditors have a wider protection area for debts arising from guarantee and other security agreements made by the testator.