According to Article 599 of the Turkish Civil Code (TCC), upon the death of the deceased, the heirs acquire the inheritance in its entirety and by operation of law. This provision embraces the principle of universal succession. Accordingly, upon death, the deceased’s rights and obligations in the estate automatically pass to the heirs in their entirety at the time of death. It is important to note that in cases where there is more than one heir, a joint inheritance will be established between the legal and appointed heirs (TCC Articles 599, 640/1). In a joint inheritance, which is a form of joint ownership, all heirs jointly own the estate assets until the inheritance is divided. Therefore, all dispositions must be carried out unanimously (TCC Article 640/2). Furthermore, all heirs are jointly liable for the estate debts in respect of all their personal assets (TCC Articles 599, 641). Joint and several liability allows the deceased’s creditors to pursue their rights by appealing to one or all of the heirs.
If no agreement has been reached between the heirs regarding the division of debts, all heirs remain jointly liable for the debts even after the inheritance is divided. Pursuant to Article 681 of the Turkish Civil Code, heirs may enter into an agreement regarding the division of estate debts after the deceased’s death. It is important to note that an agreement in which the heirs agree to divide the estate debts or to have them undertaken by one or more of the heirs constitutes a contract for the division of the estate, and therefore, as per Article 676/3 of the Turkish Civil Code, it must be drawn up in writing. This agreement regarding the discharge of estate debts has effect and effect in the internal relations between the heirs. Therefore, it cannot be asserted against creditors in external relations. More clearly, unless creditors explicitly or implicitly consent to the division or transfer of debts, all heirs remain jointly and severally liable for all of the estate’s debts, including all of their assets, after the division. (TCC Article 681/1). Unless the creditor explicitly or implicitly consents to the division of the debt among the heirs or to its assumption by some heirs, joint liability continues for five years after the division of the estate (TCC Article 681). However, if creditors consent to the division or transfer of estate debts, they cannot demand the payment of these debts from the other heirs after the division.
In light of this general information regarding the division of inheritance and liability for the deceased’s debts, it is essential to conduct a separate assessment of the situation of heirs in the event of a pledged property in the deceased’s estate. Upon the deceased’s death, the pledged property, along with all restrictions, passes to the deceased’s heirs. If, after the division of the inheritance through agreement or litigation, this property is allocated to one or more heirs, the fate of the debt secured by the pledge is regulated in Article 655 of the Civil Code. According to this provision, the heir who receives a pledged estate property for the deceased’s debts during the division assumes the debt secured by that property. However, since the provision in Article 655 of the Civil Code in question is a reserve legal rule, a contrary decision is possible. If the heirs do not enter into an agreement contrary to Article 655 of the Civil Code, certain conditions must be met for this provision to apply. The first of these conditions is that the deceased has established a lien on his or her own property. The second condition is that the testator establishes the pledge for his or her own debt. The third condition is that the property pledged for the testator’s debt be left to the heirs. Only if these conditions are met will Article 655 of the Turkish Civil Code (TCC) be applicable.
According to one view in the doctrine, the assumption of the debt under Article 655 of the TCC is independent of the will of the creditor and the heirs, and even without the creditor’s consent, the debt is assumed by transferring the pledged property to the heir. Therefore, after the division of the inheritance, the other heirs will no longer be liable for this debt, and the creditor can only demand payment from the heir to whom the pledged property is allocated. Another view in the doctrine argues that this provision is merely a presumption governing the internal relations of the heirs, and that by applying this provision, the heir to whom the pledged estate property is allocated will assume this debt only in their internal relations. According to this view, for a debt to be claimed against a creditor, the creditor must consent to it. If the creditor has not consented to the transfer of the debt, they can demand payment from all heirs.
Court of Cassation 2nd Civil Chamber, Merits No: 2024/9133, Decision No: 2025/6782;
“If one of the parties dies during the litigation, the deceased’s capacity to act as a party terminates pursuant to Article 28/1 of the Civil Procedure Code. Furthermore, the power of attorney relationship also terminates upon death. Cases that concern only the deceased, that is, those that do not pass to their heirs, become irrelevant upon the party’s death. These cases cannot be pursued against or by the deceased party’s heirs. However, cases that also concern the heirs and affect the heirs’ rights to their assets become irrelevant upon the party’s death. Just as the deceased’s pre-deceased receivables are considered assets of the estate, the deceased’s debts arising from their pre-deceased liabilities are also considered liabilities of the estate. In this case, the marriage ended through divorce, and the claimed compensation and alimony debts are eligible for transfer to the estate. Therefore, while the plaintiff’s female attorney’s determination of fault and the appeal requests regarding the accessory parties should have been reviewed on their merits and a decision was rendered, the written decision that there was no need to decide on the appeal request regarding these aspects was incorrect and necessitated reversal.”[2]
Court of Cassation 2nd Civil Chamber, Merits No: 2009/625, Decision No: 2009/6776;
“There is no dispute between the parties regarding the ownership of the property in question by the testator. These properties were not given to the defendant by the testator during his lifetime, and after his death, the defendant removed them from the shared residence. Given this situation, the requirements of Article 669 of the Turkish Civil Code do not apply to the properties. Since the defendant is a legal heir along with the plaintiff, and the defendant’s possession of these movable properties is based on his legal status as a heir, the claim regarding the properties is not based on Article 637 of the Turkish Civil Code. Heirs acquire the inheritance as a whole upon the death of the testator by law (TCC Article 599/1). If there is more than one heir, a partnership encompassing all rights and obligations in the estate is established between the heirs until the division upon the passing of the inheritance. The heirs possess the estate jointly (TCC Article 640). The plaintiff has no request for a division regarding the movable properties in question. There is no such claim. Therefore, while the request for movable property should also be rejected, it was deemed inappropriate to render a written judgment.”[3]
Court of Cassation, 8th Civil Chamber, Merits No: 2014/27588, Decision No: 2016/5782;
“The participation receivable determined as a result of the liquidation of the property regime is a debt belonging to the estate and must be paid before the heirs can share the inheritance. The remaining amount after the estate debt is paid is shared among the heirs in proportion to their inheritance shares. All heirs who have not lost this status are liable for the estate debts, both individually (TCC No. 4721, Article 599/2) and severally (TCC Article 641). Although the plaintiff filed the case under appeal as a creditor of the estate, the parties to the case, including the plaintiff, are heirs of Mustafa, the co-heir, and they are all liable for the estate debts within the framework of the legal regulations explained above. In other words, since the plaintiff has the status of heir (TCC Article 499), the creditor and debtor status of the plaintiff’s surviving spouse are combined. The parties cannot claim that any of the heirs has lost their status as heir (TCC Article 4721). TMK 511 ff., 578 ff., 605 ff.) has not been alleged and proven.
Due to all these explanations, since the case is being heard between the heirs, all heirs, including the plaintiff, are liable for the amount of the receivable claimed by the surviving spouse due to the liquidation of the property regime, which is considered a debt belonging to the estate, in proportion to their shares of the inheritance. Accordingly, while it should have been decided during the execution of the judgment that the plaintiff is also liable for the estate debts determined in proportion to their shares of the inheritance, it was not correct to issue a written decision by ignoring this matter. However, since this deficiency does not necessitate a retrial, it has been deemed appropriate to amend and approve the Local Court’s judgment pursuant to Article 304 of the HMK (Paragraph 438/7 of the HMK No. 1086).”[4]
[1] In this study, the following academic article was used: Turgut, C., & Kartal, D. B. (2024). Tereke Borçlarından Sorumluluk Kapsamında Rehinli Tereke Malının Mirasçıya Bırakılması. İstanbul Hukuk Mecmuası, 82(2), 425-438. https://doi.org/10.26650/mecmua.2024.82.2.0003
[2] Court of Cassation 2nd Civil Chamber, Merits No: 2024/9133, Decision No: 2025/6782.
[3] Court of Cassation 2nd Civil Chamber, Merits No: 2009/625, Decision No: 2009/6776.
[4] Court of Cassation, 8th Civil Chamber, Merits No: 2014/27588, Decision No: 2016/5782.