When an indebted heir stays passive while the estate he is entitled to shrinks, his creditors can be affected as well. However, a creditor who simply cannot collect a debt cannot have every transaction made by the testator set aside. Article 562 of the Turkish Civil Code (TMK) allows creditors or the bankruptcy administration to exercise, under certain conditions, the abatement right of an heir whose reserved portion has been infringed and who has not exercised it. The purpose of this route is to provide protection to the extent necessary for the collection of the debt. 1
Short answer: For a creditor to bring an action under TMK Art. 562, its debtor must be an heir with a reserved portion, that reserved portion must have been infringed, the certificate of insolvency required by law must exist, and the heir must not have brought the abatement action despite a prior formal notice. In bankruptcy, a separate assessment is made for the bankruptcy administration. The action may be brought within the period granted to the heir and to the extent required to obtain the claim. Sending a formal notice after the action has been filed does not complete a right to sue that did not arise beforehand. 1 4 5
What need does the creditor's abatement right meet?
Abatement reduces gratuitous transfers that exceed the testator's freedom of disposition, to the extent needed to protect the reserved portion. An heir may not want to sue for his own economic or family reasons. But if the heir cannot pay his debts, the failure to protect his reserved portion may also reduce his creditors' chances of collection. TMK Art. 562 applies in this special situation. It is not a general avenue for setting aside every reduction in the debtor's assets. 1 For the liability of heirs for debts of the estate, see the article on liability for the estate's debts.
The creditor's right does not mean collecting the entire estate share of the debtor on his behalf. Two things set the limit: the scope of the reserved-portion infringement on one side, and the amount of the claim that needs to be protected on the other. The debtor's statutory share and his reserved portion are different concepts. For example, a sibling may have a statutory right to inherit, yet under the current TMK Art. 506 a sibling has no reserved portion. Therefore, standing as a sibling alone does not open this special route to a creditor. 1
For general calculation and the gratuitous transfers subject to abatement, the article Abatement Action and Reserved Portion can be read together with this one. The focus here is different from an action brought by the heir himself: how the creditor's right to sue arises.
Which conditions must be met together to bring an action?
The debtor must be an heir whose reserved portion has been infringed
First, the heir relationship is established. Population records and the certificate of inheritance show the capacity in which the debtor is an heir. Then the legal regime at the date of death, the heirs, the disposable portion and the reserved portions are examined. The share shown in the certificate of inheritance alone does not prove that the reserved portion has been infringed. The active and passive assets of the estate, the gratuitous transfers to be added to the calculation and the values received by the heir are assessed together. 1 7
That a testator's gift seems unfair within the family is not enough. Whether the gift is subject to abatement must be determined under the relevant provisions, including TMK Art. 565. The creditor must explain in the petition not only that the debtor received less from the estate, but which disposition infringed which reserved portion. The other side may argue that the gift is not subject to abatement, or that the debtor has already received his reserved portion through other gratuitous transfers. 1 For sham transfers, the article on simulation by the decedent may also be examined in relation to the reserved portion.
The claim and the inability to collect it must be documented
The enforcement file, the legal basis of the claim, payment records, attachment transactions and the scope of the certificate of insolvency are assessed together. A high-value enforcement file alone does not show that the conditions of TMK Art. 562 are met. Whether the claim is still outstanding, has been assigned, has been partly paid, or can be collected from security must also be made concrete. 1 3 An attachment of the heir's share in the estate is described in the article on attachment of an heir's share.
The law requires that, for the creditor, a certificate of insolvency showing non-payment of debts existed on the date the estate passed. The date of the certificate matters particularly, because the inheritance opens at death. A certificate obtained later must not be assumed to retroactively complete the statutory condition as of the date of death. If an earlier attachment record is relied upon, it must be examined separately to determine whether it is in fact equivalent to a certificate of insolvency. 1 3
A prior formal notice must be given and the heir must not have sued
The heir must first be asked to bring the abatement action himself. The notice must clearly state the identity of the testator, the disputed disposition, why the debtor's reserved portion has been infringed, and a request that the heir bring the abatement action. An ordinary payment demand that leaves the dispute vague does not reliably replace this special formal notice. 1 4 5
The law does not set a single waiting period in days for all files. The content of the notice, the date it reaches the heir, the opportunity given to him and the remaining time limit are assessed together. A notary route makes it easier to prove the content and the service, but the essential point is that the notice has been properly given before the action is filed. Sending the envelope is not enough: the result of service must also be placed on the file. 4 5
What is the difference between a definitive and a provisional certificate of insolvency?
The certificate of insolvency for non-payment of debts under Enforcement and Bankruptcy Law (İİK) Art. 143 shows the part of the claim that remains unsatisfied. A record of attachment under İİK Art. 105/1, showing that the debtor has no attachable property, may also carry the force of the statutory certificate of insolvency. By contrast, a record issued under İİK Art. 105/2 because the assessed value of the attached goods does not cover the claim is provisional in nature. The distinction is made on the content of the document rather than on its heading. 3
Scholarly opinion is divided on whether a provisional certificate is sufficient for TMK Art. 562. Genç, while reporting the view that a provisional certificate is sufficient and earlier decisions, opposes this conclusion because the insolvency and the unpaid amount have not yet been finally established. A provisional certificate therefore should not be described as definitely sufficient or insufficient in every case. In a concrete file, the content of the document and the applicable case law must be assessed. 6
| Document or situation | What it shows | Check to carry out in the file |
|---|---|---|
| Certificate of insolvency under İİK Art. 143 | Claim left unsatisfied at the end of enforcement | Date of issue, remaining amount, identity of debtor and creditor |
| Attachment record under İİK Art. 105/1 | No attachable property available | Whether the finding was actually made so that it carries the force of a statutory certificate of insolvency |
| Provisional insolvency under İİK Art. 105/2 | Assessed value of the attached goods is insufficient | Whether it is provisional, the sale outcome, and the divergent views on TMK Art. 562 |
| Mortgage deficit or unsuccessful payment demand | Insufficiency of specific security or non-payment | Whether it alone shows the debtor's general insolvency |
This table is meant to prevent an automatic equivalence between documents. In particular, where the debtor has other attachable assets, the fact that only a mortgage does not cover the claim does not remove the need to separately investigate general insolvency. 3 6
The bankruptcy administration's right to sue and disinheritance
TMK Art. 562 also refers to the bankruptcy administration. The duty of the bankruptcy administration is to protect the bankrupt's assets and the interests of the estate of the bankruptcy. However, the fact that an heir has gone bankrupt does not mean that every kind of action may be brought against every disposition of the testator. Infringement of the reserved portion, prior formal notice, time limits and the scope of the claim are still assessed. The date of the creditor's certificate of insolvency and the date of the bankruptcy decision must not be confused with each other. 1 4
In a bankruptcy file, the body authorized to represent the estate, the decisions and the will to bring the action must be documented. The individual enforcement file of a creditor and the collective liquidation function of the bankruptcy administration are different. For this reason, a petition written for an individual creditor is not sufficient merely by changing the name of the claimant to the bankruptcy administration.
Art. 562/2 TMK provides the same protection specifically for the creditors and the bankruptcy administration of a person who has been disinherited. This provision should not be read as meaning that all consequences of the disinheritance can be freely removed by the creditor. The scope of the action is determined within the protection of the claim and the relevant reserved-portion system. For the grounds of disinheritance and the position of the disinherited person's descendants, see the article on Disinheritance. 1
Can a defect in the formal notice be cured during the action?
The Civil General Assembly of the Court of Cassation, in its decision dated October 14, 2021, E. 2020/540, K. 2021/1223, draws a decisive distinction on this point. In the case, the formal notice sent before the action could not be served and was returned; a new notice was then made. The majority of the Assembly did not accept that the failure of a formal notice that had to be given before the action could later be treated as an ordinary defect that could be cured. 4
The decision also discussed the opposing view: that the formal notice could be completed during the action. The majority did not adopt that view. In practice, therefore, sending the notice later in order to rescue the process carries a serious risk of rejection. The return of a notice requires an address search and a reassessment of the time schedule. The fact that a notice has been dispatched is not the same as its having been served. 4
The decision of the 1st Civil Chamber of the Court of Cassation dated February 6, 2024, E. 2023/6122, K. 2024/866, also states that a formal notice before the action must be investigated before the abatement request is considered on the merits. That decision does not directly accept the abatement request in its case; it is a reversal because of an incomplete legal assessment. 5
Within what period must the action be brought?
TMK Art. 562 limits the creditor and the bankruptcy administration to the period granted to the heir. Under TMK Art. 571, the abatement action is subject to a one-year preclusive period starting from the date the infringement of the reserved portion was learned, and a ten-year preclusive period starting from the date of the will's opening for wills and from the opening of the estate for other dispositions. The situation in which the annulment of a disposition revives an earlier disposition is also regulated separately. 1
A new and independent one-year period cannot be assumed to start for the creditor with each formal notice or each new step in the enforcement file. When the debtor heir and the creditor learned what, and when, may be disputed depending on the nature of the event. In preparing a case, the earliest possible date of knowledge should be taken as the basis and the risk dates recorded separately. The assessment of knowledge in the 2024 decision on its own facts should not be generalized into a rule that every creditor receives a new and independent period. 1 5
The 1st Civil Chamber of the Court of Cassation, in its decision dated October 23, 2018, E. 2015/14618, K. 2018/13792, makes this risk concrete. In that case the will was opened in the presence of the heirs on December 24, 2009; the creditor sent a formal notice on January 26, 2011 and filed the action on February 25, 2011. The Chamber accepted that the one-year period granted to the heir had expired and reversed the decision that had accepted the claim. The decision shows that a later formal notice does not provide a new one-year period. Rather than treating the filing date as the automatic date of knowledge in every file, the concrete notice and knowledge facts must be assessed together with the law. 10
| Calendar entry | Why it matters | Example of a suitable record |
|---|---|---|
| Dates of death and opening of the will | Passage of the estate and start of the upper time limit | Death record, record of the magistrate's court |
| Learning of the infringement of the reserved portion | Dispute over the one-year period | Service record, file inspection record, correspondence |
| Date of the certificate showing insolvency | Special condition under TMK Art. 562 | Approved certificate and attachment record |
| Service of the formal notice and the heir's conduct | The right to sue arises beforehand | Service record, reply, information on bringing the action |
When these dates are recorded, any assumption that the period was suspended or interrupted must be tied to a separate legal basis. In particular, sending a formal notice alone does not suspend the preclusive period for the abatement action. Preparation for the action should not be left to the last days.
Are abatement, annulment of a will and annulment of a disposition the same action?
No. Abatement aims to reduce the part of a valid gratuitous transfer that exceeds the reserved portion. Annulment of a will, by contrast, rests on the grounds listed in TMK Art. 557, such as capacity, consent, contrariness to law or morality, or form. Who may bring an annulment action is determined separately under TMK Art. 558. 1
In its 2021 decision, the Civil General Assembly accepted that the bankruptcy administration cannot seek annulment of a will merely because the estate's interest is involved; it may use the special abatement route of TMK Art. 562 subject to its conditions. The scope of İİK Art. 184 does not in itself expand the right to bring an annulment action under TMK Art. 558. 4 The relationship between annulment of a will and abatement is examined in the article on the action for annulment of a will.
Simulation by the decedent and the annulment of a disposition under İİK Art. 277 et seq. are also separate institutions. In a 2024 decision, the 1st Civil Chamber did not accept that a creditor, without being an heir and relying on the enforcement office's authorization, could assert a claim for title in the name of the heir on the ground of simulation by the decedent. Creating a right to sue by changing the name of the claim does not work. 3 5
Rejection of the estate, when it harms creditors, is a different route, with its own conditions under TMK Art. 617, a six-month period and official liquidation. Even where one wishes to examine the annulment of the rejection and abatement in the same petition, the factual circumstances, defendants, time limits and consequences must be set out separately. 1 The creditors' route against an heir's rejection of the estate is discussed in the article on annulment of the rejection of an estate.
Competent court, parties and petition
The competent court for an abatement action is the court of first instance (asliye hukuk mahkemesi). The exclusive venue of the court at the testator's last place of residence is considered under TMK Art. 576 and Code of Civil Procedure (HMK) Art. 11. The fact that the creditor or the debtor heir lives in another city does not by itself change this rule. Where there is a foreign element, Law No. 5718 on Private International Law and Procedure (MÖHUK) Arts. 20 and 43 must also be examined separately. 1 2 8
The action is directed in principle against the person who benefited from the gratuitous transfer subject to abatement. Where the transfer has been assigned on, the beneficiary has died, or there are several gratuitous transfers, the party structure is determined according to the file. Sending a formal notice to the debtor heir and that person being the only defendant in every case are not the same thing.
The petition must link the basis of the claim, the reserved-portion relationship, the prior formal notice, the certificate of insolvency or bankruptcy documents, the dispositions, the scope of the claim and the explanation of time limits. Each allegation must state the document by which it will be proved. Where necessary, a request should be made to obtain the land registry, bank, population, enforcement and will files. A general request for an inquiry into the debtor's property does not replace a clearly formulated cause of action. 2
Be careful with old litigation templates because of the 2026 amendment
As of 13 October 2026, Art. 107 of the current text of the Code of Civil Procedure has been repealed by Law No. 7589. HMK Art. 109/4 contains a provision that, where only part of a claim is sued, the claim may be increased once until the end of the investigation. The relevant changes entered into force on 31 July 2026. For this reason, ready-made petitions that still accept the former Art. 107 should not be used for new actions. 2
However, the result that HMK Art. 109/4 provides for limitation periods cannot automatically be carried over to the preclusive period under TMK Art. 571. The nature of the abatement claim, the scope of the increased request and the date of filing are assessed separately. The procedural status of files opened on an earlier date also requires a concrete transitional assessment; a single sentence solution will not be sufficient for every file.
Calculation, defenses and the effect of the judgment on collection
Illustrative example: Suppose that, on calculation, the reserved-portion shortfall of the debtor heir is 900,000 TL, and the claim the creditor could not collect and which falls within the protection is 300,000 TL. The creditor cannot claim the full 900,000 TL for its own claim merely because the reserved-portion shortfall is larger. Conversely, even if the claim is 1,200,000 TL, if the protectable reserved-portion shortfall is 900,000 TL, this special route does not automatically cover the missing 300,000 TL. This example is a description of the limit, without the valuation and cost details. 1
In a real file, the account of the estate, the dates of the gratuitous transfers, the net value, the debts, the reserved-portion ratios and the order of abatement may require an expert examination. Matters under TMK Art. 564, such as indivisible property and the right of choice, affect the outcome. The creditor's bringing of an action does not mean that the property passes directly into its name. The content of the judgment and the continuing enforcement or bankruptcy liquidation must be conducted together. 1 3
The defendant may argue that the claim has been paid, that the document is insufficient, that the formal notice was not given in advance, that the time limit has passed, that there was no infringement of the reserved portion, or that the request is excessive. A response to these defenses should not be limited to submitting the same documents again. Each objection must be answered by addressing the date and calculation on which it rests. Where necessary, a request for an interim injunction under HMK Art. 389 et seq. should be supported by concrete evidence of the risk of transfer. An injunction does not arise automatically upon filing the action. 2
Mediation, costs and remedies
A pure abatement claim, because it concerns only the estate, does not turn into a mediation for the partition of joint property under Art. 18/B of Law No. 6325. If additional claims are raised together, the condition for bringing each of them is separately checked. In disputes where the parties may dispose of their rights, voluntary mediation may be considered; however, this process should not be conducted on the assumption that it replaces the requirement of a formal notice before the action. 9
Court fees, advances on costs, service, expert fees, inspection and attorney's fees all affect the total cost. The exact amount depends on the value of the claim and the tariff at the date of the transaction. On appeal, the type and value of the decision and the current rules on finality matter. The general two-week time limits for applications under HMK Arts. 345 and 361 are assessed together with proper service and whether the decision is open to appeal. It should not be assumed that every decision is necessarily open to appeal on points of law. 2
Conclusion
The first step toward success in a creditor's abatement action is not merely to calculate the reserved portion. The claim, the documentary position at the date of death, the prior formal notice and the time limit must be built into a single file that supports one another. In particular, leaving the formal notice until after the action may prevent the court from reaching the merits. Once the correct type of action and the limit of the claim have been determined, the abatement judgment and the collection steps should be planned together. This article is general legal information; the dates and documents of the specific file must be assessed separately.
Frequently Asked Questions
Can any creditor bring an abatement action in place of the heir?
No. The reserved portion, the certificate of insolvency or bankruptcy, the prior formal notice and the time limit under TMK Art. 562 are assessed together. The existence of a single enforcement proceeding is not enough. 1 Details: What conditions must be met together to bring an action?.
If the certificate of insolvency is obtained after death, can an action be brought?
The time condition the law requires for the creditor is tied to the date on which the estate passed. Before relying on a later document, it must be examined whether an attachment record existing at that date is equivalent to a certificate of insolvency. 1 3 Details: What is the difference between a definitive and a provisional certificate of insolvency?.
Must the formal notice be given through a notary?
The essential requirement in the text of the law is that the heir be given a prior formal notice. A notary route strengthens proof of content and service. Whatever method is used, it must be possible to prove receipt, content and date. 1 4 Details: What conditions must be met together to bring an action?.
Is a formal notice that could not be served sufficient?
Merely having it sent should not be accepted as sufficient. The formal notice that the Civil General Assembly of the Court of Cassation dealt with in its 2021 decision did not fulfil the pre-action condition, because it could not be served. The outcome of service must be checked. 4 Details: Can a defect in the formal notice be cured during the action?.
Can the formal notice be completed after the action has been filed?
The Court of Cassation decisions reviewed accept that a right which must arise before the action cannot be completed by a later formal notice. For this reason, filing the action first and sending the notice afterwards is not a safe course. 4 5 Details: Can a defect in the formal notice be cured during the action?.
Can a creditor also seek annulment of the will?
Being a creditor does not by itself grant the right to bring an annulment action under TMK Art. 558. If the creditor has some other legal capacity, that is examined separately. The right of abatement under TMK Art. 562 and the right to bring an annulment action are not the same. 1 4 Details: Are abatement, annulment of a will and annulment of a disposition the same action?.
What happens if the debtor heir has already brought an action?
It must be determined whether the heir has actually exercised the abatement right and the scope of the action brought. Rather than automatically bringing a second action, the creditor should assess how the existing action affects its claim and what protection may procedurally be requested. 1 2 Details: What conditions must be met together to bring an action?.
Does a formal notice suspend the abatement period?
A formal notice alone does not suspend the preclusive period under TMK Art. 571. The period should be tracked separately, and giving notice should not be treated as if it restarted the time limit for bringing the action. 1 Details: Within what period must the action be brought?.
If the abatement action succeeds, does the property pass to the creditor?
No. The type of the judgment, the nature of the gratuitous transfer and the scope of the claim are decisive. How the judgment is applied in enforcement or bankruptcy proceedings is carried out separately. 1 3 Details: Calculation, defenses and the effect of the judgment on collection.
Must this action be brought together with the partition of joint property?
Not necessarily. Abatement and partition of joint property have different purposes and procedural rules. If a joint request is being considered, the venue, the procedural conditions for bringing the action and the conditions for hearing the claims together are examined separately. 2 9 Details: Mediation, costs and remedies.
Sources and legal bases
- Turkish Civil Code No. 4721; in particular Arts. 506, 560–571, 575–576 and 617. Current official text.
- Code of Civil Procedure No. 6100; Arts. 2, 11, 107, 109, 114–115, 119, 190, 345, 361–362, 389 et seq. Text incorporating the amendments made by Law No. 7589. Current official text.
- Enforcement and Bankruptcy Law No. 2004; Arts. 94, 105, 143, 152, 184, 277 et seq. Current official text.
- Civil General Assembly of the Court of Cassation, October 14, 2021, E. 2020/540, K. 2021/1223. Right of action of the bankruptcy administration and pre-action formal notice. Official decision text.
- 1st Civil Chamber of the Court of Cassation, February 6, 2024, E. 2023/6122, K. 2024/866. Separation of the creditor's simulation-by-decedent and abatement claims. Official decision text.
- Ali Ahmet Genç, "Right of Creditors of Heirs with Reserved Portions and of the Bankruptcy Administration to Bring an Abatement Action (TMK Art. 562)" (Saklı Paylı Mirasçıların Alacaklılarının ve İflas İdaresinin Tenkis Davası Açma Hakkı (TMK m. 562)), Selçuk University Faculty of Law Journal (Selçuk Üniversitesi Hukuk Fakültesi Dergisi), 28(2), 2020, pp. 511–542; especially pp. 523–525. DOI: 10.15337/suhfd.704035. Article and full text access.
- Law No. 4722 on the Enforcement and Application of the Turkish Civil Code, Art. 17. Official text.
- Law No. 5718 on Private International Law and Procedure, Arts. 20, 43. Official text.
- Law No. 6325 on Mediation in Civil Disputes, Arts. 1, 18/A–18/B. Current official text.
- 1st Civil Chamber of the Court of Cassation, October 23, 2018, E. 2015/14618, K. 2018/13792. Creditor's action within the period granted to the heir and the effect of a late formal notice. Official decision text.