The withdrawal of money from a decedent’s bank account does not, by itself, show that the entire amount was taken unlawfully or that it must necessarily be returned to the heirs. Whether the transaction took place before or after death, whether the account was an individual or a joint account, the source of the money, the authority for the transaction and the purpose for which the money was used must all be examined. Withdrawing money under a power of attorney does not mean acquiring ownership of that money.
In these disputes, the correct action should not be chosen merely on the basis of the phrase “asset diversion” before the bank statement has been reviewed. A return claim under the agency relationship, an accounting claim, a claim for unjust enrichment, equalization, abatement or a claim based on the right of inheritance are subject to different conditions and time limits. A gift made during life and an unauthorized withdrawal after death may coexist in the same file; these transactions must be assessed separately.
First distinction: when was the money withdrawn?
Transactions before death
A decedent may spend his or her own money, pay a debt or make a gift during life. A valid gift is not regarded as void merely because some heirs do not like it. However, other legal grounds may arise, such as breach of the reserved portion, equalization, incapacity or a defect of intent. Being in hospital does not, by itself, show that every transaction is invalid.
If the money was withdrawn by an agent, the scope of the power of attorney and the disclosure of the account are important. Claims that the money was used for hospital expenses, care payments, the price of real estate or another debt of the decedent are assessed on the basis of documents. A withdrawal receipt shows that the money left the bank; it may also be necessary to prove separately that the money was handed over to the decedent or actually spent on the decedent’s needs.
Transactions after death
On death, the rights and debts of the decedent pass to the heirs by operation of law. The fact that the account still appears in the decedent’s name does not mean that another person may freely use the money. Holding the bank card and password does not, by itself, create rights of inheritance. In some disputes, the time of death and the time of the transaction may also be significant.
Under Article 513 of the Turkish Code of Obligations (TBK), a power of attorney ends on death unless the contrary is agreed or follows from the nature of the work; the mandatory duty to continue where the interest is endangered is regulated separately. For this reason, both the general statements that “no transaction under a power of attorney is possible after death” and that “if the power of attorney has no time limit, every transaction is valid” are inadequate. The authority, the conditions for its continuation and the purpose of the money must be examined together. TBK, Articles 508 and 513. Remote handling of bank transactions by heirs living abroad is discussed in the article Inheritance procedures without travelling to Türkiye.
Does a joint account show that all of the money belongs equally to the account holders?
Authority toward the bank and ownership in the internal relationship
A joint account agreement determines which transactions each account holder may carry out individually toward the bank. Who owns the money in the internal relationship between the account holders may, however, be debated separately. The account opening agreement, deposit records, the agreement between the parties and donative intent are important. Authority to withdraw alone is not an authority to acquire, without consideration, the part belonging to the other account holder.
In Court of Cassation practice there are examples in which the balance of a joint account is accepted as equal shares unless the contrary is claimed and proven. However, the type of account and the evidence showing otherwise must be examined. The bank’s ability to pay and the obligation of the person who received the payment to account to the other right holder are different legal relationships. The defence that “the bank paid it out, so the whole amount is mine” does not remove this distinction.
The importance of a written payment document
In the decision of the 7th Civil Chamber of the Court of Cassation (Yargıtay) dated October 4, 2022, E.2021/2119, K.2022/5776, it was claimed that the entire money in a joint account had remained with one heir. However, the bank record showed that the money had been paid to the two account holders against their signatures. A judgment that had accepted, on the basis of witness evidence, that the other person’s share had later been taken by the defendant was quashed because of how the proof was evaluated in light of the written document.
The decision does not mean that every sum in a joint account is definitively divided in half, nor that a witness can never be relied upon in any dispute. In the concrete case, the relationship between the content of the signed payment document and the claimed subsequent taking was decisive. Full text of the decision.
Which records should be requested from the bank?
The balance on the day of death alone may not be sufficient. The opening of the account, its conversion into a joint account, term deposit renewals, money transfers and its closure should be examined as a chain. The same money may have circulated among several accounts. Treating every outgoing payment as a new loss of assets leads to double counting.
| Record | Question it answers | Limit |
|---|---|---|
| Account opening agreement | Who is the account holder and who has transaction authority? | Alone, it may not show the source of the money |
| Account movements | How much money came in and went out, and when? | The ultimate beneficiary is not always visible |
| Payment voucher and signature | Who received the money? | Subsequent use is examined separately |
| EFT, remittance and transfer documents | To which account was the money transferred? | The legal ground must be explained separately |
| Power of attorney and instructions | Does the transaction rest on authority? | Authority does not mean gift or ownership |
| Expense invoice and receipt | For whose benefit was the money spent? | A link to the transaction must be established |
The bank inquiry should be made concrete by account and date range. Starting from a known transaction, it is useful to match the sending and receiving accounts. A general request for unlimited past records, covering unrelated persons, goes well beyond what is needed to prove a claim. Requesting the records through the court and, where necessary, an expert examination of the records may be sought.
Digital transaction evidence
In mobile or internet banking transactions, the manner in which the instruction was created, the time of the transaction and the security records held by the bank may be important. It should not be assumed that all of this data exists in every case or will be handed directly to the heir. The preservation of records and their collection by a lawful method should be requested. Instead of entering the decedent’s account without authorization, the authorized application route should be used.
The bank’s written reply sometimes contains an opinion rather than a definitive record. The phrase “probably carried out under a power of attorney” does not have the same evidentiary weight as the original of the instruction actually executed. Where a reply is incomplete, one should ask which document is missing, whether an archive search has been carried out, and with which accounting entry the transaction has been matched.
Accounting and return obligations for money withdrawn under a power of attorney
Under Article 508 of the Turkish Code of Obligations (TBK), the agent is bound to account for the work carried out and to deliver to the principal what the agent has received in connection with the power of attorney. After the decedent’s death, the rights arising from this relationship may come into question as part of the estate. The authority to withdraw money from a bank does not, by itself, constitute a legal ground for the agent to transfer the money into his or her own assets.
The agent may argue that the money was handed over to the decedent or spent on the decedent’s needs. This defence must be linked to the records. The existence of a hospital invoice does not, by itself, show that the invoice was paid from the disputed account; the amounts and dates must be matched. On the other hand, demanding the return of the entire withdrawal without taking into account real and documented care expenses leads to an incomplete account.
It is also determined separately whether a claim the heirs bring against the agent is directed at the entire estate or at a personal share. Where a right is held in joint ownership (elbirliği), the participation of all heirs or the need for an estate representative may arise. Collecting, through a personal claim against another heir, an estate receivable held by a third person should not be treated as subject to the same litigation regime.
How are gifts, equalization and abatement distinguished?
Where there is a genuine gift
Where the decedent knowingly made a gift without consideration, the legal assessment differs from that of a simple unauthorized withdrawal. Advances made to descendants on account of their share of the inheritance are examined under the equalization provisions of Article 669 and following of the Turkish Civil Code (TMK). Gifts that breach the reserved portion are examined under the abatement provisions of TMK Article 560 and following. Not every gift is subject to abatement, and not every heir is a holder of a reserved portion.
Equalization concerns the account of sharing between the heirs. Abatement aims to reduce a gift that exceeds the freely disposable limit to the extent necessary to protect the reserved portion. In the recovery of an unauthorized withdrawal, it may be argued that there was no validly effective gift from the outset. Using these claims interchangeably creates problems regarding the party status and the time limits.
The decision on investigating the chain of transactions
In the decision of the 7th Civil Chamber of the Court of Cassation dated November 8, 2022, E.2021/6114, K.2022/6690, the transfer of bank accounts and the subsequent movements of the money were examined. The Chamber held that contradictory bank replies and expert reports cannot be relied upon alone, and that it must be explained, with supporting documents, which transactions the money passed through and to whom it was sent. The dismissal judgment was quashed.
The decision applies the former Civil Code’s restitution provisions to inheritance on a death that occurred before 2002. This historical feature should be preserved. In a current file, TMK Article 669 and the relevant transitional rules must be examined separately. The methodological lesson that can be drawn from the decision is that the closure of an account alone does not prove that a gift has ceased to exist, and that the burden of proof is determined according to the nature of the transaction. Full text of the decision.
Who should be the defendant: the person who withdrew the money or the bank?
A return claim directed at the person who took the money for his or her own benefit differs from an allegation that the bank made a payment in breach of the contract or of its duty of care. Whether the bank knew of the death, the authority for the transaction, the account agreement and the security procedures may matter for the bank’s liability. However, the fact that the bank made a payment does not, in every case, create a direct obligation to pay compensation.
Where claims are directed at several persons, the same loss must not be recovered twice. The person who made the transfer, the person who received the money and the person who ultimately benefits may be three different people. Suing only the apparent account holder is sometimes incomplete; but naming all bank employees or the family without establishing any connection may be unnecessary.
The competent court and whether mediation is a precondition for suit depend on the parties and the nature of the relationship. A dispute over return or equalization between heirs is not the same as a consumer or commercial dispute against the bank. The fact that a claim carries the heading “inheritance” does not bring every action before the civil magistrate court (sulh hukuk mahkemesi).
Statute of limitations and time limits for bringing an action
There is no single time limit for all money withdrawn from a bank account. For claims arising from the agency agreement, the five-year period in Article 147 of the Turkish Code of Obligations applies; for unjust enrichment, the period in Article 82 of the same Code is two years from learning of the claim and in any event ten years; other provisions may come into play for different legal grounds. The starting point is evaluated with regard to the maturity of the claim and the specific claim made.
For abatement, the one-year time limit running from learning of the facts under TMK Article 571, and the ten-year time limits depending on the type of disposition, are also important. Equalization in inheritance and claims for vindication arising from inheritance must be assessed under their own conditions. Writing “asset diversion” in the title of an action does not remove any time limit. The date of the transaction, the date of death, the date of learning and the first legal application must be recorded separately.
Interest and loss of value
The principal to be returned and the interest may rest on different legal grounds. It must be determined when default arose, whether the agent was late in delivering the money, and whether there is a tort or another legal ground. It cannot be said that, in every file, the highest bank interest rate may be claimed from the date of withdrawal.
A foreign-currency account, the return on a term deposit and a change in currency raise separate accounting questions. The expert report should explain the money movements and the method of calculation, and the court determines the type of statutory interest within that framework. Care should be taken not to claim the same sum twice, both in foreign currency and in Turkish lira.
Interim protection and the right to disclaim
Where there is a risk that money will be transferred to other accounts or that evidence will be lost, evidence preservation, an interim injunction or a precautionary attachment may be considered, depending on the circumstances. Their conditions are not the same. A request to freeze the debtor’s entire assets without limit on a money claim is not accepted merely because an inheritance dispute exists. The prima facie proof of the claim, the danger, the security and proportionality are all important.
A person considering disclaiming the inheritance should consider Article 610 of the Turkish Civil Code (TMK) before withdrawing money from the account in his or her own name. Taking estate property for oneself may affect the right to disclaim the inheritance. Obtaining a certificate of inheritance or requesting information is different from directing the money to personal spending. Filing a return action does not, in every case, show that the right to disclaim has been preserved; the purpose and scope of the protection sought by the claim are examined. The position of an heir who has disclaimed the inheritance with respect to creditors is explained separately in the article Annulment of a disclaimer of inheritance.
Checking the account through an example
Hypothetically, assume that 500,000 Turkish lira (TL) was withdrawn from an account, that 80,000 TL of it was documented hospital expenses, that 20,000 TL was paid toward the decedent’s debt, and that 100,000 TL was deposited back into the account. The remaining 300,000 TL is then examined separately for its legal ground. Treating the entire first withdrawal as a loss overlooks the amounts returned and the amounts spent on valid expenses.
On the other hand, the abstract explanation “I provided care” does not make the entire 300,000 TL lawful. The intention to make a gift, a fee agreement, the agency account and the evidence of expenses are each assessed separately. The calculation should be carried out in order: first matching all movements, then determining their legal nature, and finally applying the share of the right holder.
Worked example: amount withdrawn and amount claimed for return
Assume that an heir withdrew 250,000 TL from an account that held 600,000 TL on the date of death. This record does not show that the entire 250,000 TL will be recovered on the same legal ground. Who made the withdrawal, where the money was sent, the actual ownership of the joint account and the nature of the expenses claimed must all be investigated. The figures in the example only illustrate the method of examination; they are not the outcome of a lawsuit or a precisely calculated claim.
If the person who made the withdrawal states that they spent 50,000 TL on paying a documented estate debt, the existence of the debt and the fact that the payment was actually made must be verified separately. Showing a personal expense as an estate expense is not the same as having paid a mandatory estate debt. Similarly, if that person says they paid other heirs, the recipient, the amount, the date and the debt to which the payment was attributed must be determined.
At the final stage, the claim is framed in light of the result of the account analysis and the authority to conduct the proceedings. Demanding directly that an amount which should be returned to the estate be paid into the personal account of a single heir may create a procedural problem and a problem with the form of relief, even where the evidence is strong. For this reason, the bank review and the examination of the parties and their representation should be carried out together.
Conclusion
In disputes over money withdrawn from a bank account, what is decisive is not the amount withdrawn alone. The timing of the transaction, the type of account, the authority, the ultimate direction of the money and the legal ground of any gift must be explained together. When a complete chain of records is established, claims for return, accounting, equalization and abatement can be properly separated, and valid expenses and unjust acquisitions are not left in the same item.
Frequently Asked Questions
Can a person holding a power of attorney keep the money they withdrew?
Authority to withdraw does not, by itself, provide ownership. The agent has a duty to account and to deliver; any gift or other legal ground is assessed separately.
Does the entire balance of a joint account pass to the surviving holder?
Not automatically. The account agreement, the shares, the source of the money and any evidence to the contrary are examined. The authority to withdraw from the bank and the ownership in the internal relationship are different matters.
Is withdrawing money with a card after death treated as an inheritance right?
Holding the card and the password does not prove a right of ownership. The authority for the transaction, the rights of the heirs and the purpose of the use are examined separately.
Does every withdrawal become the subject of an abatement action?
No. Abatement relates to a valid gift that breaches the reserved portion. An unauthorized withdrawal, an agency account and equalization are different claims.
Is witness testimony alone sufficient instead of a bank record?
It depends on the nature of the transaction and its relationship to the written documents. In particular, where the claim is made against a signed payment document, the rules of proof must be examined separately.
Is there a single time limit for bringing an action?
No. The legal ground of the claim and the date of learning or of maturity give rise to different time limits. A single period cannot be applied to all bank disputes.
Sources and legal bases
- Law No. 4721, Turkish Civil Code (TMK), Articles 560–571, 599, 610, 637–640, 669 and following.
- Law No. 6098, Turkish Code of Obligations (TBK), Articles 77–82, 146–147, 508, 513.
- Law No. 6100, Code of Civil Procedure, provisions on proof, documents, expert examination and interim protection.
- Court of Cassation (Yargıtay) 7th Civil Chamber, October 4, 2022, E.2021/2119, K.2022/5776.
- Court of Cassation (Yargıtay) 7th Civil Chamber, November 8, 2022, E.2021/6114, K.2022/6690.