Liability for the Debts of the Deceased

Inheritance law; is the branch of law that determines the fate of private law relationships, rights, and debts after the death of a real person. After death, the real person who acquires the title of the testator (deceased) has rights as well as debts while alive. This study, which examines who, why, how, and for how long will be responsible for the debts passed on to the heirs without requiring an acceptance statement due to universal succession, is presented for the benefit of anyone interested and, as in every legal matter, it is recommended to conduct the process under the guidance of an expert and authorized lawyer in this field.

According to the "principle of universal succession" adopted in Article 599 of the Turkish Civil Code No. 4721, heirs acquire the inheritance as a whole and according to the law, with the death of the testator. With the death of the testator, all rights that can be transferred by inheritance, and at the same time, debts are transferred to the heirs as a whole without any transaction. Heirs are personally and jointly liable for all the transferable debts of the testator, without limitation to the estate transferred to them, as a rule.

This responsibility begins at the moment of the opening of the inheritance. However, for a creditor to be able to claim against the heir, it depends on the heir not rejecting the inheritance within the period granted by the law for the rejection of the inheritance.

The Turkish Civil Code holds the heirs responsible for the debts of the estate, not the debts of the testator. The concept of estate debts is a more comprehensive expression than the concept of the testator's debts. Because after the death of the testator, heirs will also be responsible for expenses related to the estate that cannot be referred to as the testator’s debts, such as bookkeeping, sealing, funeral expenses, and the 3-month maintenance costs of individuals living with the testator and taken care of by them.

The heirs' joint and personal liability for the testator’s debts, while protecting the interests of the creditors, can pose a serious economic threat for the heir who is liable for the entire debt against the creditor in external relations. Considering this situation, the legislator has included some regulations aimed at protecting the heirs against joint and personal liability.

Who Is/Are Responsible for the Debts of the Testator?

According to Article 599/2 of the Turkish Civil Code, heirs are personally liable for the debts of the testator. Both legal heirs and appointed heirs are responsible for the testator's debts.

Being Eligible to Become an Heir, What Does It Mean?

The fundamental condition to be liable for the debts of the testator is to be an heir. In order to be an heir, it is necessary to be eligible for inheritance, not to be deprived of the inheritance, and to be alive at the moment the inheritance is opened. The eligibility for inheritance, regulated under the title of legal capacity in Article 577 of the Turkish Civil Code (TCC), is the appearance of legal capacity in inheritance law, and everyone with legal capacity is eligible to be an heir.

As a rule, to be eligible for inheritance, one must be alive at the moment of the testator's death. The exceptions to this rule are the inheritance of the fetus and the appointment of additional heirs as regulated in TCC Article 583. If the heir who is alive at the moment the inheritance is opened dies later, their inheritance right passes on to their own heirs.

As a result of the principle of universal succession, as a rule, there is always at least one universal successor for the testator. A universal successor can be a real person or a legal entity. The state is the final universal successor.

Liability of Heirs with Their Personal Assets towards Creditors

According to Article 599/II of the Turkish Civil Code (TCC), heirs are personally liable for the debts of the testator towards creditors with all their assets. The regulation accepts the rule that heirs will be liable with their personal assets in addition to the estate assets towards creditors. Heirs are personally responsible for the debts of the testator arising from contracts, unjust enrichment, tort, not keeping the book related to the estate, sealing the estate, managing the inheritance, and accrued and accruing interests. The personal liability of heirs begins only with the acceptance of the inheritance or the passing of the rejection period, i.e., with the definitive acquisition of the inheritance by the heirs. Accordingly, even if heirs cannot cover the debts of the testator with the estate assets, they are liable for these debts with their personal assets.

To speak of the personal liability of heirs for the debts of the estate, the inheritance must be definitively acquired. Anyone who cannot acquire the status of heir for any reason is not responsible for the debts of the testator.

The law foresees exceptions to the rule that heirs are personally liable for the debts of the testator. One of these is the official liquidation of the estate. In the case of official liquidation according to Article 632/III of the TCC, heirs are not liable for the debts of the estate. Another exception to the rule of personal liability for the debts of the testator is keeping the official book of the estate and accepting the inheritance according to the kept book. According to Article 628/I of the TCC, if the official book of the estate has been requested and the inheritance has been accepted according to the kept book, in this case, heirs are liable only for the debts written in the book.

Another exception to the rule regarding the liability for the debts of the testator is when the state is the legal heir. According to Article 631 of the TCC, in cases where the state is the legal heir, an official book of the estate is arranged by the magistrates' court ex officio, and the state is liable only for the debts registered in the book, limited to the estate.

The joint liability of heirs with their personal assets for the debts of the estate continues for a period of 5 years even after the sharing of the estate. The start date of this period, which has the quality of a lapse period, is the date of sharing or, for debts to be fulfilled later, the date when the debt becomes due.

Joint Liability of Heirs

In the case where the testator has multiple heirs, according to Article 641 of the Turkish Civil Code (TCC), heirs are jointly liable for the debts of the estate. Under the principle of joint liability, estate creditors can demand their claims from a single heir or from all heirs.

Primarily, the responsibility of heirs for debts is in proportion to their shares of the inheritance. However, due to joint liability, an heir from whom the entire debt is demanded cannot claim to be liable only in proportion to their share against the creditor. Thus, the creditor has the opportunity to obtain their claim without having to sue all heirs. The responsibility of heirs for the debts of the estate generally begins with the opening of the inheritance. When the conditions necessary for the claim of the debt are met, each heir is obligated to fulfill the estate debt from the opening of the inheritance. The provision regarding joint liability is mandatory. Any testamentary dispositions made by the testator to eliminate or limit joint liability are of a distributive nature and bind the heirs in their recourse relationship among each other; however, they cannot be asserted against creditors in external relations. Despite such a testamentary disposition, the creditor can approach all heirs to demand the fulfillment of the debt. The heir who fulfills the debt can recourse to other heirs in accordance with the testamentary disposition of the testator.

It is possible to examine the joint liability starting with the opening of the inheritance in two categories, before and after the sharing of the inheritance.

The Liability of Heirs Regarding Estate Debts

Responsibility Regarding Estate Debts Prior to the Distribution of Inheritance

Turkish Civil Code (TCC) Article 641/I holds heirs responsible not for the debts of the testator, but for the debts of the estate. The concept of estate debts is a more comprehensive expression than the concept of the testator's debts.

The first instance of debts for which heirs are responsible, even if they are not the debts of the testator, is specified in TCC Article 641/II. According to TCC Article 641/II;

"The appropriate amount of compensation to be given to adult children and grandchildren who live with the mother and father or grandmother and grandfather, and dedicate their labor or income to the family, is considered an estate debt, provided that the estate does not become insolvent due to debt payments."

In this provision, the law specifies a scenario where adult children and grandchildren, who have been living with and contributing to the family, are entitled to a certain amount of compensation from the estate. This compensation is considered a debt of the estate, but it's contingent on the condition that such payment does not render the estate insolvent. The provision aims to provide a fair compensation to family members who have been dedicating their resources to the family, while also ensuring the financial integrity of the estate is maintained. This is a part of the broader framework in Turkish law to balance the interests and rights of heirs, family members, and creditors in the process of handling an estate after the testator's death.

The mentioned debts, similar to the debts of the testator, are to be paid before the distribution of the estate. Additionally, the compensation specified in TCC Article 641/II is paid only for children and grandchildren.

Another scenario where heirs are responsible before the distribution of the inheritance is outlined in TCC Article 507, which includes:

• Funeral expenses,

• The costs of sealing the estate,

• Writing expenses,

• The three-month maintenance costs for individuals living with the testator and being cared for by them.

These costs are also considered estate debts, and heirs are jointly liable for them.

In summary, Turkish law outlines various expenses and compensations as estate debts for which heirs are jointly liable. These liabilities aim to ensure that certain obligations and rightful claims are met before the distribution of the estate, ensuring fairness and proper management of the estate's assets and liabilities.

Responsibility Regarding Estate Debts After the Distribution of Inheritance

The distribution of inheritance doesn't immediately dissolve the relationship among the heirs; their rights and obligations continue for a while due to the associated liabilities.

Although the distribution of inheritance is beneficial for heirs, it can have negative implications for the creditors of the testator. During the distribution, if the debts are also shared among the heirs, a creditor may struggle or fail to collect their claim if the heir responsible for a portion of the debt faces financial difficulties. However, this distribution binds the heirs in their internal relations, but cannot be asserted against creditors in external relations. To address such situations, the legislator has arranged for the heirs to remain jointly liable for the testator's debts for a certain period after the distribution of inheritance. In this regard, according to Article 681/II of the Turkish Civil Code (TCC), the joint liability of heirs continues for 5 more years from the date of distribution of inheritance or from the date of maturity of the debt after the distribution.

Furthermore, TCC Article 649/III stipulates that each heir can demand the payment of estate debts or ensure they are secured before distribution. However, in the absence of such a demand from the heirs, it's possible to proceed with the distribution of inheritance even without settling the debts.

Termination of Joint Liability

According to the Turkish Civil Code, joint liability among heirs will terminate in two circumstances:

Creditor's Consent to Debt Division:

If an agreement on the division of debt is made among heirs during the distribution of inheritance, and the creditor consents to this agreement, the heirs will no longer be jointly liable to the creditor. The liability for the relevant debt will be determined according to the agreement made among heirs.

Passage of Five Years Since the Distribution of Inheritance:

Joint liability terminates with the passage of five years from the date of inheritance distribution or from the date of maturity of the debt to be fulfilled after the distribution.

Liability in Case of Transfer of Inheritance Share

Transfer of Inheritance Share to Another Heir:

An heir can transfer their share of inheritance to another heir, but this transfer does not exempt the transferring heir from liability towards the testator's creditors. The transferring heir continues to be jointly liable for the testator's debts for five years from the date of distribution.

Transfer of Inheritance Share to a Third Party

It's also possible to transfer an inheritance share to a third party. However, the third party does not acquire the status of an heir. Their right is directed towards claiming the assets corresponding to the transferred share after the distribution of inheritance. Hence, the transferring heir continues to hold heir status and remains liable for the testator’s debts.

Moreover, according to TCC Article 202, the third party acquiring the inheritance share also assumes some liability for the testator's debts. From the moment of announcing or advertising the acquisition, the acquiring party becomes liable for the estate debts corresponding to the inherited share. However, unlike heirs, the third party's liability is not joint; it's limited to the portion of estate debts corresponding to the transferred inheritance share.

Heirs' Liability Arising from the Decedent's Guarantor Debts

According to Article 630 of the Turkish Civil Code (TCC), the decedent's debt arising from a guaranty is written separately in the ledger. The liability of the heirs for the decedent's debts arising from a guaranty is limited. Even if the heirs accept the inheritance unconditionally, in the event of the liquidation of the estate according to bankruptcy provisions, they are liable only to the extent of the amount falling to the creditors due to the guaranty. The provision of TCC Article 630 is applicable only if a request for keeping a ledger is made by the heirs.

For the heirs to be liable for the guarantor debt in a limited manner, the official ledger of the estate must have been kept and the guarantor debts must have been written separately in the ledger. Otherwise, since the estate will be accepted unconditionally, the heir will be held jointly and personally liable for all the receivables and debts of the estate, including the guarantor debt, within this scope. The provision of TCC Article 630 applies to all types of guarantor debts as the provision does not differentiate between ordinary guaranty, joint and several guaranty, or recourse guaranty.

Additionally, for the heirs to be liable for the guarantor debt, the principal debtor must not have paid the debt. If the debt is performed by the debtor or terminates for another reason, the guarantor debt ceases, and the liability of the heirs becomes irrelevant.

Heirs' Liability Arising from the Decedent's Tax Debts

The tax obligations of the decedent as a taxpayer are transferred to the legal and appointed heirs or heir who have not rejected the inheritance. However, each heir is liable for the decedent's tax debts in proportion to their shares of the inheritance. In the case of heirs' liability to the treasury due to the decedent's tax debts, joint and several liability is not mentioned.

According to Article 12 of the Tax Procedure Law No. 213, "In case of death, the obligations of the taxpayers are transferred to the legal and appointed heirs who have not rejected the inheritance. However, each of the heirs is liable for the deceased's tax debts in proportion to their shares of the inheritance". So, although the liability of the heirs for the decedent's debts is joint and several as a rule, the liability of the heirs for the decedent's tax debt is not joint and several, but is in proportion to their shares of the inheritance.

As for the liability of inheritance and transfer tax payments, since these debts are not estate debts, they arise and are paid according to each heir's share.

There are also some differences regarding tax penalties. According to Article 372 of the Tax Procedure Law, in case of the taxpayer's death, penalties that have been imposed and accrued, such as irregularity, special irregularity, or tax evasion, are cancelled. Due to the principle of the personal nature of penalties, heirs are not liable for the decedent's tax penalties, and the liability of the heirs cannot be pursued due to tax penalties. In accordance with the principle of the personal nature of penalties, upon the person's death, previously imposed penalties are dropped, and the transfer of any penalty to the heirs is not in question.

Liability of a Person Losing the Heir Status

Liability in Case of Disinheritance

Legal or appointed heirs have the right to reject the inheritance that has been transferred to them by making a unilateral declaration of intent within the specified legal period. The mentioned situation of not accepting the inheritance is the rejection of the inheritance. The rejection of the inheritance takes effect retrospectively, that is, from the moment of the decedent's death. Rejection of inheritance can occur in two ways: Actual rejection and legal rejection.

Actual rejection occurs when the heir, upon learning of the decedent’s death and their status as an heir, declares their intent not to accept the inheritance within three months. The starting point of this three-month period varies depending on whether the heir is a legal or appointed heir.

Legal rejection, on the other hand, is a legal presumption where the heir is considered to have rejected the inheritance in cases where the decedent's insolvency is clearly known or officially determined as of the date of death. However, the heir still has the authority to accept the inheritance.

With the rejection of inheritance, the heir status is lost, the rejection takes effect retrospectively back to the moment the inheritance was opened, and the rights and obligations to be imposed on the heir due to the inheritance are eliminated. As a rule, the heir who rejects the inheritance or is deemed to have rejected it will not be liable for the debts of the decedent. However, the law contains provisions for the protection of creditors in cases where the inheritance is rejected maliciously, with the intent of hiding assets from creditors.

Liability in Case of Renunciation of Inheritance

The renunciation of inheritance agreement, as not specified otherwise in TMK (Turkish Civil Code) Article 528, can be made with legal and appointed heirs either gratuitously (without consideration) or against a consideration (with consideration). Renunciation of inheritance is a unilateral transaction contingent upon death that can only be done through an inheritance agreement. By its nature, it cannot be done through a will. Being a type of inheritance agreement, the renunciation of inheritance agreements should be arranged in the form of an official will as per TMK Article 545/I.

The renunciation of inheritance agreement can be made by renouncing the entire inheritance share, a part of it, or by renouncing certain assets in the estate. However, renouncing certain assets does not result in the loss of heir status.

For a heir to be liable for estate debts, the renunciation of inheritance agreement must be made against consideration. In the face of a gratuitous renunciation of inheritance agreement, there is no claim right for the creditors of the decedent.

In cases where there is a renunciation of inheritance agreement against consideration, if the liabilities exceed the assets when the inheritance is opened and there isn't enough value to pay the estate debts, and the other heirs are also not paying the debts, liability is imposed on the renouncing heir and their heirs.

Creditors should first approach the heirs for their receivables. For the liability of the renouncing heir to come into play, the heirs must be insolvent, have rejected the inheritance, or have requested an official liquidation. In other words, the liability of the renouncing heir is secondary.

The renouncing heir and their descendants should have acquired the consideration subject to the renunciation against consideration within five years before the death of the decedent, that is, before the opening of the estate. No liability arises from the consideration acquired more than five years ago.

At the moment a consideration is demanded from the renouncing heir, they are liable up to the value they have in hand at the time the inheritance is opened; they are not liable for the values they have consumed.

Liability in Renuncition of The Inheritance

Disinheritance refers to the situation where an heir, who has committed the actions limitedly listed in TMK (Turkish Civil Code) Article 578 against the testator, is deprived of the inheritance and thus cannot acquire the status of an heir. In this case, since the individual cannot become an heir, there will be no debt transferred to them, and they will not bear responsibility for the debts.

Disinheritance arises automatically by law, without the need for a testamentary disposition by the testator in this regard or a court decision.

Disinheritance affects only the disinherited individual. The descendants of the disinherited individual become heirs just like the descendants of a person who died before the testator.

Liability for the Debts of the Deceased: Duration and Statute of Limitations

The joint liability of the heirs for the debts of the deceased continues for a period of five years from the distribution of the estate. The making of the agreement regarding the estate distribution is not sufficient for the initiation of the five-year period. The period starts from the moment the distribution is executed, that is, when it is realized. If the estate distribution is made through litigation instead of an agreement among the heirs, the period begins from the finalization of the given judgement.

However, the stipulated five-year period is not a statute of limitations period. With the expiration of the period ending joint liability, the creditor loses the right to apply jointly against the heirs. The claim from the estate is subject to a ten-year statute of limitations period under general provisions.

Recourse Right of the Heir Who Pays the Debts of the Deceased Against Other Heirs

According to TMK (Turkish Civil Code) Article 682/III, each heir is liable for the estate debt according to their share of the inheritance. Recourse is applicable for the part that exceeds the paying heir's share.

The right of recourse arises for the heir who pays the estate debts against the other heirs. As per TMK Article 682, the heir who pays an estate debt not allocated to them by a sharing agreement, or pays more than the amount they have assumed, or pays an estate debt exceeding their share, can recourse against the other heirs. There's no difference for the right of recourse whether the estate debt is paid before or after the distribution of the inheritance.

The heir who pays the estate debt initially exercises the right of recourse against the heir who has assumed the debt as per the sharing agreement. If the paying heir cannot recover the amount from the heir who assumed the debt, they can approach the other heirs. In the absence of an agreement regarding the distribution of estate debts, the paying heir can recourse against the others according to their share of the inheritance.

There hasn't been any stipulation regarding the statute of limitations period subject to the right of recourse. Since the paying heir substitutes for the creditor, the right of recourse is subject to the statute of limitations period applicable to the claim.

There are two exceptions to the use of the right of recourse. The first one is when the deceased has set a different rule regarding the payment of a particular estate debt. For instance, if the deceased has made a testamentary disposition that a particular debt should be paid solely by a specific heir they designated, in such a case, the paying heir will not have the right of recourse against the other heirs. The second situation is when all heirs have made a different arrangement among themselves regarding their liabilities for the estate debts. In this scenario as well, the liability for the debt and the right of recourse arises not according to the shares of inheritance, but according to this particular agreement made among the heirs.

Disadvantages of Proceeding Without a Lawyer in Cases with Numerous Heirs

Seeking assistance from a competent and specialized lawyer is the best course of action in any legal matter. Especially in cases where there are numerous heirs, proceeding individually with separate lawsuits will be unnecessarily excessive in terms of time, effort, and cost. In such scenarios, it is advisable for these individuals to grant power of attorney to a lawyer and become plaintiffs in a single lawsuit. Proceeding in this manner without lawyer representation is impossible. Moreover, even if some of the numerous heirs opt for this route, one of the advantages is protection against erroneous court decisions. This is because different courts handling lawsuits from these heirs may not be aware of each other's proceedings, leading to a lack of coordination among them. A lawyer can detect erroneous or incomplete situations through the system and intervene to rectify them before the decision is finalized.

Frequently Asked Questions

1) Will I receive a seizure due to my deceased father's debt?

The personal liability of heirs begins only upon the acceptance of the inheritance or the expiration of the rejection period, which is when the heirs definitively acquire the inheritance. Until the option to reject the inheritance is available, the personal liability of heirs does not commence. During this period, creditors can pursue the estate assets, and impose seizures, but they cannot touch the personal assets of the heirs yet.

This is because, in the meantime, heirs can reject the inheritance or request official liquidation. During this timeframe, there is no personal liability on the part of the heirs. When the inheritance is rejected, it has retroactive effect.

2) What is the invalidity of rejecting the inheritance?

The rejection of the inheritance becomes invalid if it is not done in accordance with the formal requirement, or if, before the rejection period expires, a heir interferes in the estate transactions, performs actions beyond ordinary management or those necessary for the continuation of the decedent's affairs, or hides or appropriates estate assets for themselves. In this case, a lawsuit for the annulment of the rejection does not arise, but rather a lawsuit for determining the invalidity of the rejection comes into play. This is because, in these situations, since there isn't a valid rejection statement, there will not be a situation necessitating annulment.

3) In Case of Rejection of Inheritance, to Whom Does the Inheritance Pass?

When one of the legal heirs rejects the inheritance, the rejecting person is deemed to have predeceased the decedent. If a legal heir rejects the inheritance, their share passes to the rightful heirs as if they were not alive at the time the inheritance was opened.

Below, this situation is evaluated with all possibilities: If the surviving spouse rejects the inheritance, it results as if the spouse had predeceased the decedent.

If all legal heirs in the group with the surviving spouse reject the inheritance, the surviving spouse acquires the entire estate.

If only a portion of the heirs along with the spouse reject the inheritance, the other heirs benefit from the rejection. In this regard, if the rejection changes the group of heirs the surviving spouse is part of, the share of inheritance increases.

If the decedent’s descendants reject the inheritance, the entire estate goes to the surviving spouse.

If all heirs within the same group reject the inheritance and there is no surviving spouse, the other group cannot become heirs.

In this case, the estate is liquidated, and after paying off the debts, the remaining part is given to the first-degree heirs as if no rejection had occurred. In case of rejection of inheritance by an appointed heir, the heir's share passes to the closest heirs unless it is understood otherwise from the decedent's testamentary disposition.

If one of the siblings rejects the inheritance, in this case, the share of inheritance of the other descendants increases in proportion to the share of the rejecting descendant, in accordance with the principle of equality.

4) Does the rejection of inheritance cover only the debts in the estate?

With the claim of rejection of inheritance, the heir will have rejected the entire estate as a whole, that is, both the assets and liabilities. In this regard, the assets and liabilities of the estate form an indivisible whole. Therefore, the legislator has not permitted the heir, who declares the rejection of inheritance, to be exempted only from the debts of the estate or to benefit only from the assets.

5) Can I reject the inheritance while I have debts?

According to the Turkish Civil Code, heirs who inherit upon the decedent's death have the right to not accept the inheritance by rejecting it. However, if the heir rejects the inheritance solely to cause loss to their own creditors, it is considered as a "malicious rejection of inheritance." In this case, the creditors of the heir who maliciously rejects the inheritance can file a lawsuit for the cancellation of the rejection of inheritance. A certain amount of security can be deposited to cover the creditors until the conclusion of the lawsuit. If sufficient security is provided, the lawsuit for the cancellation of the rejection of inheritance will be dismissed.

6) What is the liability of a testamentary creditor regarding debts?

Assigning a specific asset and appointing someone as an heir are different from each other. Appointing as an heir provides rights over the entire estate or a specific proportion of it, whereas assigning a specific asset involves transferring a particular asset or assets to a particular person or persons through testamentary dispositions. The appointed heir gains a proprietary right over the estate they are appointed to, automatically and directly upon the occurrence of death, while a testamentary creditor only obtains a claim right over certain asset(s). In other words, the testamentary creditor does not automatically acquire the testamentary asset upon the death of the decedent but has the right to claim it. While the appointed heir, like legal heirs, is responsible for all the debts of the decedent with both the estate and their personal assets, the testamentary creditor is not responsible for the debts of the estate.