INHERITANCE & SUCCESSION LAWS IN TURKEY

All systems of law that recognize private ownership of property also recognize that such ownership should pass at the death of the owner to others. The law of succession deals with the passage of a person’s property right at his death. This is expressed in the Turkish Constitution, that ‘every person has the right to own and inherit property’ the details of the law of succession is regulated in the New Civil Code, which basically followed the provisions of the former Civil Code of 1926.Inheritance

It is a generally accepted rule that, in the absence of an express provision made by a deceased person, this estate will, by operation of law, go to his close relatives upon his death. This is so because of the importance placed on the family and the duty of the members of the family to support each other. Persons are free however, by will or otherwise, to dispose of their property to persons other than their relatives, within the limits permitted by law. A particular indirect limitations placed on the power of disposition is the existence of death duties or inheritance taxes which even in western countries, where the concept of private ownership is most widely recognized, are relatively high.

Under Turkish Law, which is based in the respect on Swiss law, persons are generally free to dispose of their property at their death. They may execute wills. By which they leave their property to such real or legal persons as they choose. This is so called ‘testate succession’ has some limits. Notwithstanding the provisions of a will, close relatives of the deceased are entitled to a certain portion of the estate, called the reserved portion.

In the absence of such disposition, the estate of a deceased person will pass, in the proportions prescribed by law, to his relatives, or if there are none, to the state. This is called ‘intestate succession’

II. INTESTATE SUCCESSION

A. Parentals

In the deceased has failed to make a will or otherwise provide for the distribution of his estate at hs death, it will be distributed among his next of kin. For this purpose, the blood relatives of a deceased person are divided into groups which are called parental. The first parental consist of the descendants of the deceased, the second of his parents and their descendant, the third of his grandparents and their descendants. The fourth parental is the state. The rights of a surviving spouse and how they relate to parentals is discussed below.

The following rules apply to the operation of system of parental,

First, as long as one member of a parental is living at the death of the decedent, the more removed parental will be eliminated. Thus, if the deceased leaves one child, parents or grandparents of the deceased, as well as their descendants, will not receive anything. 

Secondly, among the members of each parental those nearest in any degree will be represented by his or her descendants. For example, if D is survived by one child, a son, he will be his sole successor. But if this son had died before D, then the surviving children of D’s son, but not, for example, D’s parents will take the estate. 

Thirdly, surviving successors in the same degree of closeness to the deceased in the same parental, participate in the estate equally. Also, there is equality among male and female successors. Therefore, if D dies in state, leaving two sons and one daughter, each of them will receive one third of the estate. If one of the sons had predeceased D, leaving two children, his share will go to them, entitling each to one sixth of the whole estate.

B. Other Persons who may Inherit

1. Children Born Outside of Marriage

Children born outside of marriage have the same rights of inheritance from their mother as other children. Those children recognized by their father or whose paternity is established by a court may inherit from their father, equally to the children who were born within the marriage. For example, when a man leaves two children born within the marriage and one, for example, recognized child, each will receive 1;3 of the estate. The former rule entitled the child only one half as much as a legitimate child, had already been found by the Constitutional Court against the equal treatment clause of the Constitution. The new Civil Code explicitly declares the equality.

2. Adopted Children

Adopted children are treated the same as the legitimate natural born children of the deceased. Therefore they receive the same amounts as the other children of the deceased. The adoptive parent will, however, not take from the adopted child’s estate if the predeceases them. An adopted child may be an intestate successor of his natural parents and may thus inherit from both his adoptive and real parents.

3. The Surviving Spouse :

The surviving spouse shares the estate with the living blood relatives of the deceased, if any. Her or his portion varies according to the closeness of the other successor of the deceased with whom she or he has to share the estate. If there are close relatives, such as children, the surviving spouse receives less; of there are only distant relatives she receives more. For example, if the surviving spouse inherits together with the descendants of the deceased, she gets one fourth of the estate. If the surviving spouse takes with the second parental, she receives ownership of one-half of the estate. If she takes with grandparents of the deceased she gets ownership of three-fourths of the estate. If there is no grandparent, she becomes the sole legal successor ad takes the whole estate.

Wills

A will may be defined as a unilateral legal transaction expressing the intention of a person, made according to the conditions required by law, which becomes effective as of the death of the person. The subject matter of a will may not be limited to the disposition of property. Thus, by this will, a person may also recognize his child.

Wills.

(a) In general, wills must be in writing and signed by the testator / trix in the presence of two witnesses before a public notary, magistrate or an authorized officer. In practice, official wills are made by public notaries. Witnesses must be adults and must have full legal capacity. According to the Turkish Civil Code, a person is considered to be an adult in the following circumstances:

Normal Age of Capacity: an individual is automatically deemed to be an adult when they are over 18 years old;

Acquiring Age of Capacity via Marriage: marriage renders an individual an adult. An individual may get married with the consent of their legal representative even though they are younger than 18 (17 for men, 15 for women);

Age of Capacity via Court Decision: it is possible for an individual who is younger than 18 to be deemed adult under statutory conditions (emancipation).

In order to execute a will, a person must have the capacity to make fair judgments. Any person who is 15 years of age or older is deemed to have capacity to make a will if they are also deemed to make fair judgments and has the ability to understand their rights (see, also, Section A9).

An official will is a will which is prepared by a law officer such as a public notary or a civil court judge pursuant to the instructions of a testator / trix. The testator / trix reads the text prepared and accepts its contents by signing it before the official. Thereafter, the will is dated and signed by the official as well. Finally, the testator/trix, in the presence of two witnesses, expresses that they have read the text and that this text is their last will. The witnesses also sign a statement attached to the will stating that they find the testator / trix capable of executing the will and that they approve the text of the will in their presence.

If the testator / trix is unable to read, the text is read by the official in the presence of the witnesses and the testator / trix signs it accordingly. If the testator / trix is unable to sign, then it is signed by the official and by two witnesses.

Such an official will is preserved at the offices of the notary public or the civil court judge, and a copy may be provided to the testator / trix on demand.

Official wills provide more security since they are executed before officers and they are less likely to be declared void after the death of the testator / trix, which is frequently the case with other forms of wills due to many reasons that will be explained in further sections.

Another advantage of official wills is that they may be executed by individuals who are unable to read or write.

On the other hand, the official wills take more effort and are more costly compared with other types of wills.

A holographic will is completely written by the testator / trix in handwriting. It must include the location and the date of preparation for reference and it must be signed by the testator / trix.

Even a simple letter not formally expressed to be a ‘will’ may constitute a valid holographic will if it meets the above requirements and if it shows the intention of an individual to dispose of their assets after death.

A holographic will can be executed anywhere and enable a person to keep the contents of their will secret. It does not require any witnesses. But there is a chance that it may be challenged on the basis that the testator / trix was mentally incapacitated at the time or later designated a different allocation of their estate.

An oral will is a type of will that can be executed only in exceptional circumstances, where it is impossible to execute an official or a holographic will. It is simply an oral declaration of the testator / trix which may constitute a valid will if the conditions are met.

The main condition for an oral will is a subjective force majeure condition that makes the testator / trix incapable of executing a different type of will, such as war, natural disaster or terminal illness. In addition to this, two witnesses are required. Following such declaration by a testator / trix, if death occurs due to the force majeure, the witnesses must convert such testament into a written format and then apply to the court as soon as possible to register the will on behalf of the testator / trix.

A will maybe revoked in several ways. The first, and most simple method of revocation is the execution of a new and updated will. If the new will is inconsistent with the former one, the provisions of the new will replace the old ones. The execution of a new will does not have to be in the same form of will as the original. For instance, an official will may be revoked by a holographic will anytime before death.

A new will which is only supplementary to an existing will, and only partly alters the provisions of the older will without revoking them entirely, is called a codicil. Codicils are executed in the same way as a will.

A testator / trix can always revoke an official will by an official application for such purpose at anytime before death. Other means of revoking a holographic will in whole or part are burning, tearing or destruction of the text by other means intentionally or unintentionally. In cases of unintentional destruction, if the will's existence cannot be established by other legal means (such as submission of a copy), the will is deemed revoked.

The disposition by the living testator / trix of the items of assets specifically bequeathed in a will constitutes a partial revocation of the will.

A will is deemed automatically revoked if the testator / trix gets married after the execution of their will. However marriage does not revoke the will if the will makes express reference to the testator / trix's forthcoming marriage.

Divorced spouses cannot be legal heirs to each other and they lose their rights that arise from a will executed during the marriage. The reason for this is the assumption of the legislator that the testator / trix's designations for the spouse were connected with the ongoing marriage at the time.

A will, or a part of a will, cannot be revived after revocation unless it is revived according to the law of succession and there is a clear intent of revival by the testator / trix.

A will that is partially revoked and thereafter revoked in full is considered to be revoked in full, despite the fact that certain parts may / may not have been revived at an earlier stage. This is the case unless the intention of such partial revival is declared at the later date of full revocation.

Non-heterosexual marriages are not recognized in Turkey and therefore such partners cannot benefit as legal heirs accordingly. However, such lack of legal status does not effect any valid express dispositions made by the testator / trix in favour of the other partner. Since such partnerships are not recognized as legal marriages, the automatic revocation of the will does not apply on the separation of such couples.

The testator/trix cannot appoint or authorize any third party to identify the beneficiaries of their testament after death. The testator/trix may appoint an executor to enforce what they designated in their will.

Trusts are not available under the Turkish legal system. The most similar legal entity is a foundation which may serve the purposes of a trust. The intention to establish a foundation may be expressed by testamentary disposition. The deceased may allocate a certain fund or all of their estate to a foundation. It is generally accepted that a foundation becomes the new owner of the estate at the time of death. If a foundation is designated as an heir, it becomes responsible for the debts and revenues of the estate allocated to it by the will of the testator/trix.

There is no specific registrar for wills in Turkey. As stated an official will is kept at either the office of the public notary or at the civil courts.

(a) Turkish law of succession applies a parental system. If the deceased fails to make a will or otherwise fails to provide for the distribution of their estate at death, it will be distributed among their next of kin.

For this purpose, the blood relatives of a deceased person are divided into groups which are called parental. The first parental consists of the descendants of the deceased, the second of their parents and their descendants, the third of their grandparents and their descendants and the fourth is the Turkish State.

The following rules apply to the operation of this system:

First, as long as one member of a parental is alive at the time of death of the deceased, the other parental groups’ rights over the estate are automatically eliminated. Thus, if the deceased has one child alive, then the parents or grandparents of the deceased will receive nothing and the estate will remain in the parental group of the children.

Second, among the members of each parental those nearest in degree to such parental have priority over those in any following groups of parentals. For instance; if A is survived by one child B, B will be A’s sole successor. But if B had died before A then the surviving children of B, if any, will be the new priority heirs of A instead of the following parental members such as A's parents and A’s brothers and sisters.

Third, surviving successors in the same degree of kinship to the deceased in the same parental group, are awarded the estate in equal portions. Also, there is equality among male and female successors. Therefore if A dies intestate, leaving two sons and one daughter, each heir will receive one third of the estate equally. If one of A's children had predeceased A, leaving two children, their share will go to the children, entitling each one to one-sixth of the whole.

Children born outside marriage have the same rights of inheritance as children born in wedlock. Those children recognized by their father or whose paternity is established by a Court may inherit from their father equally. For instance, if a man leaves two children born within a marriage and one who is recognized, each will receive one third of the estate. Adopted children are treated in the same manner as the legitimate or biological children of the deceased. However adopting parents are not taken into consideration with regard to the adopted child’s estate if they predecease them. An adopted child is a legal successor of their biological parents as well.

(b) There is no difference between movables and immovables under Turkish succession legislation.

Freedom of Testation

(a) A testator / trix is not completely free to dispose of their entire estate as they please. The law limits this freedom in favor of close relatives, by means of the ‘reserved portion’ principle.

This ‘reserved portion’ is a specific percentage of the estate reserved for certain relatives of the deceased. Not all persons who would be entitled to inherit by intestate succession have reserved portions. Only the children, father and mother, brothers and sisters and the surviving spouse of the deceased have rights to such a reserved portion. The amount of the reserved portion depends on the closeness of the surviving heirs to the deceased. The new Civil Code has decreased the extent of the reserved portion and expanded the amount.

Children

Their reserved portion is half of their intestate statutory share. Thus, if the amount of the estate to be distributed is, for instance 80 and if four children are successors, the intestate share of each would be ¼, namely 20 each and therefore one-half of that share, 10, is the reserved portion for each of those children.

Parents

Their reserved portion is one-quarter of their statutory share.

Sisters and Brothers

Their reserved portion is one eighth of their statutory share.

Spouse

If there are living children or parents of the deceased, the reserved portion of the spouse is the entire amount of his or her statutory share. In all other instances, the reserved portion is three-quarters of the statutory share.

(b)

(i) A testator / trix may enter into a contract of inheritance with another individual instead of making a will. For instance, a husband and wife may conclude an inheritance contract under which they appoint their son as the ultimate successor to both their estates. Unlike a will, the contract of inheritance is not a unilateral disposition but a bilateral contract.

As a consequence, the parties are bound by the contract and the contract is not unilaterally revocable by either of the parties. However they may terminate the contract of inheritance by mutual agreement. In addition to this, if the beneficiary of the contract acts against the testator / trix (e.g. they commit a felony against the testator / trix), the testator / trix may unilaterally terminate the contract as to such beneficiary.

The parties to a contract of inheritance must express their wishes and sign the contract before a public notary or a Civil Court judge and two witnesses.

(ii) Following the payment of the deceased's debts the estate is divided among the heirs. The heirs can decide the method of partition and the property may be distributed in kind or sold and the proceeds distributed accordingly. If the estate contains immovable (real) property such as land or a house, written approval of all heirs is necessary to agree the method of distribution.

If the heirs cannot agree on the way in which the estate is to be distributed or if a creditor requests a partition in order to collect their debt against the estate, or against one of the heirs, a lawsuit may be brought in court for the distribution of the estate. The law governing distribution by the court includes certain provisions regulating the partition of items which are agricultural land or that have historic value to the family. Under the recently revised Civil Code, the surviving spouse has a special right to demand the family property and the ownership of the house in which the spouses were living together before death.

(c) Turkish succession law provides certain rules with regard to reserved portions. Heirs with reserved portions (and creditors of the heirs with reserved portions in exceptional circumstances) may (with leave of the court) oppose a distribution if the part distributed exceeds the ratio of the estate that is the remaining portion after the entitlement of the reserved portion. (However, heirs with reserved portions cannot file the above-mentioned suit or demand temporary injunction when the testator / trix is alive.)Distributed portions are corrected through two methods: reduction and equalization. Heirs may exercise such options if they feel the distribution of assets is not just or in conformity with the law.

Reduction : for example, if the deceased states ‘I leave my Istanbul flat (which has a value of 700) to my son A, and I leave my Ankara flat (which has a value of 200) to my daughter B’, the position will be as follows. The testator / trix has an estate with a value of 900 and they intend to portion 700 of the estate to son A. However, daughter B has a reserved portion with a value of 225 (calculated from the total estate value of 900 as B has an intestate share of one-quarter). Thus, in this situation B can file a revocation suit demanding the remaining part of her reserved portion.

Another example is as follows: the deceased M has one daughter (C) and an estate with a value of 100. He leaves 30 to his friend A and 45 to his other friend B. However C has a reserved portion of 100 x 1/2=50. The sum of testamentary dispositions of M is 30+45= 75. Therefore the dispositions of A and B will be reduced according to their ratios and the reduced value of A will be 30 x 1/3, which is 10 and the reduced value of B will be 45 x 1/3, which is 15. Thus, C can file for the remaining part of her reserved portion which is equal to 112.5 – 100 = 12.5.

Equalization : Another method is equalization. Where the testator/trix has transferred an asset to an heir when they are alive, the heir is obliged to return the asset (movable or immovable) or its value to the estate in order for it to be partitioned. Certain conditions are required before a transfer can be made subject to equalization:

the original transfer must have taken place when the testator/trix is alive;

the transfer must have been without any consideration;

the transfer must have been to an heir;

the transfer must have been made as part of the heir’s intended portion of the inheritance.

Therefore, not all transfers are subject to equalization. The burden of proof is on the plaintiff if they claim that the transfer was made in consideration of the heir’s portion of inheritance.

All heirs are subject to equalization whether or not they are entitled to a reserved portion. However it is possible for the testator / trix to provide that the asset or value shall be excluded from equalization. Unless the testator / trix indicates their clear intention to exclude the transfer from equalization when they make the transfer to the heir, equalization is applied to all types of transfers, including the provision of a beneficial loan.

Maintenance

Children of the deceased that have not completed their education or who are physically or mentally disabled at the time of the deceased's death may request additional compensation if they have reasonable grounds to be compensated in comparison to other heirs without statutory grounds. It should be noted that the grandchildren of the deceased will not be entitled to such compensation, even if they were regularly supported by the deceased when they were alive.

It is also provided that a child who has lived with their parents or grandparents and who is allocated the parent's income on death will be entitled to capitalize that interest as at the time of the parent's death in addition to their reserved portion.

Community Property between Husband and Wife

(a) See section A 4(a).

(b) The new matrimonial regime provided for by the new Turkish Civil Code dated 22 November 2001 provides that all assets (except personal assets) and assets acquired during marriage are considered as joint ownership. If one of the spouses dies, the matrimonial regime is liquidated before the estate is determined. The surviving spouse has the right to demand liquidation and determination of the assets and he/she is able to designate their share within the marriage.

As regards all potential disputes between the surviving spouse and the estate's heirs in relation to matrimonial property, the former law is applied for the properties acquired before 1 January 2002, even if the deceased dies after that date, and the new matrimonial regime is applied to property acquired after that date.

Joint Property

If a deceased testator / trix had jointly owned property, the joint share forms part of the estate. The heirs that have rights over such jointly owned property may either agree a partition or apply for liquidation.

In general, when heirs inherit property, their ownership is also joint ownership over the title and they may apply to the court for the partition of estate between them. Hence, it is not possible to share one of the jointly owned assets unless all heirs agree to a partition of all assets in the estate. In the absence of such agreement, the heirs may demand liquidation from the courts.

Gifts (Inter Vivos)

(a) No. However if the other heirs can prove that such gift by the testator / trix was made by undue influence; without of legal capacity; or has reduced their reserved rights, etc., they may file a termination of transaction lawsuit to restate the property back to the estate calculations (see also Section A4(c).)

(b) Gifts that have been made up to one year before the testator / trix’s death may be the subject of a termination of transaction lawsuit. However if the testator / trix has made such a gift with an "abdicating clause" then the gift may be subject to such a lawsuit without any time limitation.

Capacity

(a) In order to execute a will a person must have legal capacity to make fair judgments. Any person who has reached the age of 15 is deemed to have capacity to make a will if they are able to make fair judgments. This differs from the age of adulthood (emancipation) which is 18 and which is required to enter into transactions.

(b) Witnesses must be over 18 years of age and must have sound mental capacity. No specific qualification is either required to validate the will or sufficient to invalidate it. However, a gift to a witness or to the spouse of a witness is deemed invalid unless there are sufficient other witnesses to validate such a gift.

(c) There is no restriction on the identity or capacity of a beneficiary. Unless there is a specific direction contained in the will, where a beneficiary is under age (i.e. younger than 18), they will be unable to give valid receipt for a legacy or share of residue left to them and it will therefore be retained by the executors/administrators (or other trustees appointed) until the beneficiary attains full age and is able to give receipt.

Authority (Court, Notarial or Other)

(a) An order of succession is the specific document that officially designates the heirs of the deceased. This document is used to execute the heir’s rights before title registries, banks etc. Application for the order of succession is submitted within one month following the death by the heirs.

(b) The heirs or their attorney must apply to the Civil Court of Peace for the distribution of the estate. The required documents for such application are as follows:

a petition addressed to the Civil Court of Peace; and

a family birth record (received from the related Population Registration Office).

These documents will be submitted to the Civil Court, after which the Court settles a hearing date; makes its decision; and issues the order of succession itself. The costs are approximately TL 1,500.00 (excluding any unpaid tax that may be due and excluding legal costs).

(c)A lawsuit is filed with the Civil Courts as mentioned above.

Invalidity of Will

(a)A will is deemed invalid if it is formally defective or if the testator/trix lacked testamentary capacity. The testator / trix must know and approve the contents of a will. Thus if they agree to execute a will which another person draws up for them, and execute it in ignorance of its contents, the will may be invalidated.

Undue influence, duress or fraud will also invalidate a will. It is important that the testator / trix both understands and voluntarily wishes to make the dispositions included in the will at the time of execution.

(b) Invalidation makes the will void.

(c) The onus of proof is on the plaintiff in the invalidation claim.

Simultaneous Death

(a) When more than one person dies and it is not possible to prove which person predeceased the other, it is presumed that they died at the same time. The presumption is important in cases of heirship between the deceased persons. For instance, a father and a son cannot be legal heirs if they die at the same time. Both ‘presumption of death’ and ‘presumption of death at the same time’ are rebuttable presumptions and can be disproven with valid proof.

(b) See Section A12(a).

Presumption of Death

Parents, children, brothers, sisters or legal heirs of an individual who claim a presumption of death, may apply to court to register the death, and the usual provisions of law of succession will be applied after the said procedure. Death presumption rules and, especially, the time of death determination rules differ, depending on the circumstances of the disappearance.

Estate Taxes

(a) The Inheritance Tax Act 1959 governs the taxation of estates passing on death and inter vivos gifts.

(b) The above mentioned Act states:

The Inheritance Tax Act is applied to assets of Turkish citizens and assets located in Turkey when such transactions are realized by ways of succession or any other complementary way. The Act is also applied to assets of Turkish citizens which they have acquired in foreign countries. However a non-domiciled foreigner would not be liable to the mentioned tax if they acquire an asset of a Turkish citizen which is outside the Turkish borders by way of succession or any other complimentary way.

(c) Inheritance tax is applied by reference to the value of the estate. However, there are exemptions for property passing to certain categories of beneficiary and these beneficiaries are designated under Art.3 of Inheritance Tax Act.

Persons who are exempt from Inheritance Tax Act are listed below :

public administrations, retirement funds, social security institutions, associations for public interest, political parties and their attachments or the exempt institutions that these attachments have founded;

institutions that are exempt are institutions founded for science, research, culture, art, health, education, religion, charity and sports etc. for purposes to the benefit of the public:

ambassadors, chargé d'affairs, consuls of foreign countries (except honorary consuls), officers of such consulates and embassies that are also citizens of such countries, the officers and family members of such officers that are formally assigned as officers (if there is such reciprocity). (However those that have acquired assets from Turkish citizens by way of succession or any other way and persons domiciled in Turkey that have acquired assets located in Turkey by way of succession or any other way are excluded).

(d) There are no other taxes on the transfer of assets to the heirs.

 Administration of Estates

(a) According to Turkish Civil Code article 640/2: ‘Heirs own the estate jointly and dispose on every right of the estate together.’ Heirs can also appoint a common representative. The fourth paragraph of the same article states that ‘every heir can demand protection for their rights within the estate’.

The civil court judge may appoint a representative until the distribution of the estate and such representative may manage the assets of the estate and organise the rights of use of the heirs. Such representation is not mandatory and the court does not automatically appoint an administrator until requested.

In addition, a testator / trix may appoint one or more executors to carry out their will. The executor shall administer the estate, pay its debts and distribute the remainder of the estate as directed by the will or otherwise required by law in order to execute the will. Executors are subject to supervision by judges of the civil courts and could be dismissed by them accordingly.

(b) Heirs can apply to the civil court of the last domicile of the deceased to request an official inventory of the estate in order to provide accredited information regarding the estate.

An heir that accepts an inheritance as documented in the inventory of the estate is only liable for debts of the deceased to the extent of the assets listed and no excess liabilities may be imposed on their personal assets and/or over their inheritance portion documented in the inventory.

(c) The administration mentioned in Section A15 (a) is supervised by a judge of the civil court.

(d) An heir may file a claim in court and thereby raise an objection to the management of the estate by the administrator.

(e) As explained above, the heirs’ rights are determined and stated in the order of succession. Legally, the heirs automatically acquire ownership of the property and the order of succession is a declaratory document. In practice, however, the Order of Succession is required to transfer the title of property, especially of funds in a bank or real estate. See also Section A7 with regard to assets inherited jointly.

(f) Generally, the creditor collects directly from the estate though the assistance of the court or from the heir that has accepted their inheritance.

(g) If there is no appointed executor or no executor who is able and willing to act (from among the heirs), the court appoints an executor and the executor is supervised by the judge, as explained above.

Domicile/Nationality

(a) According to Art. 20(1) of the International Private Law and Procedure No.5718, where the nationality of the deceased is not Turkish, the inheritance shall be subject to the laws of the deceased's nationality. However, immovable properties located in Turkey are subject to Turkish law under any circumstances.

(b) The local court may grant an order of succession in order to determine the heirs, even though there are no assets.

SECTION B. APPLICABLE LAW/PROCEDURE WHERE FOREIGN ELEMENTS ARE INVOLVED

Jurisdiction

(a)-(c) According to Art. 43 of the Law of International Private Law and Procedure (IPLP - The Law No. 5718 titled “International Private Law and Procedure” was adopted on 27 November, 2007 and was published in the Official Gazette No. 26728 dated 12 December 2007), lawsuits of foreigners concerning succession issues should be resolved by the court in the last place of domicile of the deceased.

Applicable Law

According to Art. 20 of IPLP, inheritance of the deceased is subject to their national legislation.

However, Turkish laws are applied to immovable property located in Turkey.

Foreign Succession/Inheritance Orders

(a) Article 20/4 of IPLP states that duly executed testamentary dispositions of the deceased (according to their national laws) will be valid. However, Art. 54/1 b) provides limitations on some issues, such as the exclusive power of Turkish courts to jurisdiction over Turkish immovable property.

(b) A duly executed order of succession (from a foreign country) will be valid. However, such an order will not cover immovable assets located in Turkey because of the reasons mentioned above. Banks, though, will act on the basis of a Turkish court order either generally or recognizing a foreign order.

(c) A civil court of first instance has jurisdiction for the recognition and enforcement of foreign court orders. Such recognition can be requested of the court of domicile of the individual requesting recognition; or from the court of their permanent residence, if they are not domiciled, or from, Ankara, Istanbul and Izmir Courts if none of these factors are present.

The required documents that shall be attached to the petition for recognition are as follows:

a duly approved original copy of a foreign court order or an approved copy of the foreign court order and an approved translation;

a duly approved original copy of a court order indicating that the order is finalized (i.e.no further appeal is possible) or an approved copy;

the beneficiaries/heirs can apply to the competent court and the court will settle a decision in terms of conditions set out under Art.54 of IPLP accordingly.

Article 54 of IPLP states the following on the issue:

there must be a reciprocal agreement between Turkey and the other country that has issued a court order or the mentioned country must include an article which enables recognition or de facto application of its provisions;

the court decision shall not deal with matters within the exclusive power of Turkish courts (such as immovable property) in Turkey;

the court decision shall not be explicitly against public order of Turkey;

the defendant (if there is one) must be provided with the necessary documentation (due process) to appear before the court and present their defence, before such court order is resolved.

Two or More Succession or Probate Orders

Nationality will prevail if such an order includes movables; however, location of assets will prevail if such order includes designations of immovable property according to provisions of IPLP.

Assets

The local court will assume jurisdiction according to territorial jurisdiction, as explained in Section B3(c).

Expert Evidence

(a) Evidence will normally be required from a lawyer qualified in the jurisdiction of the deceased’s domicile before a grant of representation may be issued to the estate of a person who died domiciled outside Turkey. That evidence must cover the manner of administration of the estate as prescribed by the law of the deceased’s domicile, identify the persons entitled to apply for a grant to the deceased’s estate in Turkey and, if relevant, state the manner in which the estate devolves.

It is necessary for the capacity of a foreign authorized person to be established by means of the apostille procedure. Turkish diplomatic and consular officers are empowered to administer the making of affidavits in the country in which they are appointed: their official seals will be recognized by the Turkish court without the need for further evidence of their authority to be provided.

(b) Affidavit evidence will be sufficient and a foreign lawyer will not be required to appear in court to provide evidence. However, if it is necessary for the application that the grant be determined by proceedings in court, it may be necessary for a lawyer qualified in the jurisdiction of the deceased’s domicile to give evidence.

Unity of Succession

Turkish law provides that immovable assets devolve in accordance with the law of their situs. However, the determination differs for movables. IPLP provides that acquired real rights are preserved if the movable is transferred to another country. In the absence of an acquired real right, the devolution of a movable is subject to the law of the deceased's domicile.

Formalities

Turkish law will treat a will as properly executed if its execution conforms with the Turkish law in force at the relevant time in the territory at the time of its execution or of the testator / trix’s death. The Turkish consulate can provide such conformity in order to execute a proper will. In addition, the Turkish courts accept any foreign will, that is executed properly, pursuant to international principles which it recognizes.

Hague Convention

Turkey became party to the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions 1961 in 1983.

The underlying rule of Turkish law is that immovable property passes in accordance with the law of its situs and movable property passes in accordance with the deceased’s national law as at the date of their death or at the time of execution of the will. The rules relating to conflicts of laws are complicated and the following should only be regarded as a synopsis of the position. Detailed advice may be required in particular circumstances.

(a) In order to effect a disposition of immovable property situated in Turkey, a will must be recognized as valid under Turkish law on the basis of the principles enunciated above. In order to effect a disposition of movable property situated in Turkey, the will must satisfy the requirements of the law of the deceased’s national law as at their date of death. Such wills shall be executed before a notary or a civil court judge and two witnesses. Codicils are subject to the same procedures of execution as wills.

(b) Turkish courts will endeavor to find the testator / trix’s true meaning when constructing a will. If it is clear that the testator / trix meant their will to be constructed in accordance with the principles of another legal system, the court will give effect to that intention. In similar situations Turkish courts apply to the Ministry of Justice in order to receive information from the other legal system relating to terms which are difficult to understand.

(c) The rights of beneficiaries or heirs will depend upon the law that governs the devolution of the asset in question: if movable, the deceased’s national law at the date of the death; and, if immovable, the law of its situs.

(d) Capacity to inherit will, again, depend upon the deceased's national law in the case of moveables and upon Turkish law for immovable property.

(e) A testator / trix shall acquire capacity as stated in Turkish legislation.

(f) Turkish law may prevail in circumstances where there is 'lack of will'. For instance, a will would be deemed invalid for lack of will if someone else has prepared a will on behalf of the testator / trix. The will would also be deemed invalid where there is: unclear content; a lack of a formal requirement pursuant to the law that is regulating the form; impossible content; and content against morality. In addition, if the will has been replaced by a new will, if the heir predeceases the testator, or if the heir is debarred from the inheritance, the will would also be invalid. Invalidity of a will can also be filed in cases of mistake, duress or fraud in Turkey.

(g) In Turkey there is no power that gives the authority to third party to appoint the ultimate recipient. However, the testator / trix can appoint an executor in their will to compel the heirs to fulfill their liabilities regarding the estate.

(h) Legal requirements concerning revocation of a will are governed in all cases, except where revocation is by the execution of a new will, by the law of the testator / trix’s domicile at the date of the purported revocation. However, the law is far from clear on this question. Amendment and revocation as a result of the execution of a new will and revival of wills will depend upon the law that governs the making of the will.

(i) If a non-resident executes a will in Turkey, their national law will be applied to their movable property. However, Turkish law will be applied for immovable property located in Turkey.

1. Capacity

In order to execute a will a person must have capacity to make fair judgments. Any person who has completed the age of 15 is deemed to have capacity to make a will, if he is able to make fair judgment. This differs from the normal age at which one has capacity to enter into transactions. Mistake, fraud or duress makes a will void

2. Form

A will must be in a form required by law. It may take the following forms;

(a) The authentic or official will : This is a will which is prepared by an official such as a notary or a Peace Court judge pursuant to the directions of the testator. The testator then reads the next and accepted its contents by signing it. Thereafter, the will is dated and signed by the official himself. Finally, the testators, in the presence of two witnesses expresses that he has read the text and that it is his last will. The witnesses also sign the statements on the will they found the testator capable of executing the will and that he accepted in their presence its contents.

If the testator is not able to read, the text is read to him by the official in the presence of witnesses. When it is proved by him, he will sign it. It he is unable to sign, then it is signed by the officials and by two witnesses.

Such an authentic will is preserved at the office of the notary or Peace Court judge, and a copy may be given to the testator at his request.

Such an authentic will provides security in that it is less likely that such a will be declared void after the death of the testators, as is frequently that case with other form of wills. Another advantage of an authentic will is that it may be made by a person who is unable to read or write. On the other hand, the authentic will entails notarial expenses and does not have the privacy of the holographic will.

(b) The holographic will : The holographic will is completely written by the testator himself. It must also includes the place of preparation and the date, again in his own handwriting, and it must be signed by the testator himself. Even a letter, if it meets these requirements and clearly shows the intention of a person, may constitute a valid holographic will.

It is easy to prepare a holographic will. It may be prepared anywhere, and it enables a person to keep the contents of his will secret. It does not require any witnesses. But it may be rebutted with the assumption that the testator was mentally incapacitated at the time when he signed the will.

(c) Oral Will : The oral will only in exceptional circumstances, when it is impossible to execute an authentic or holographic will, will an oral will be considered valid. Thus, for example, a soldier in the battle field may make an oral will. Here the testator must express his will to at least two witnesses who must in turn write out and sign the will as soon as possible and submit it to a court, expressing that the testator was capable of making his will and that it was make under extraordinary conditions.

3. Revocation of Wills

Since the execution of a will is a unilateral transaction made without the approval of other persons, the testator may revoke his will is one of its essential characteristics, and the testator cannot before his death deprive himself of the power to revoke it.

A will may be revoked in several ways. It is revoked by making a new will. If the new will is in consistent with the former one, it replaces the earlier will. The new will need not to be in the same form as the earlier. For example, an authentic will may be revoked by a holographic will. A new will which is only supplementary to an existing will and only partly alters the existing one without revoking it entirely, is called a codicil.

Other ways of revoking a will in whole or part are by burning, tearing or other-wise destroying it intentionally, or unintentionally, if it in the latter instance its contents cannot be otherwise proved or by crossing out or otherwise cancelling all or part of a will. The disposition by the testators in his lifetime of an article of property specifically bequeathed in a will constitutes a partial revocation of the will that is to say with respect to such bequest.

4. Beneficiaries

Beneficiaries designated in wills are called legatees. There are two sorts of legatees;

a. Universal legatees: receive all or a fraction of the estate, and like statutory or intestate successors, they may be obliged to pay the debts of the estate. There may be several universal legatees.

b. Particular legatees: particular legatees are the recipients of specific bequest of legacies, that is to say, a specific article of property, say a certain watch, all the testator’s furniture etc., or a sum of money.

5. Conditions and Charges

A legacy may be left subject to a condition or charge the legatee receives a legacy, but is under the obligation of performing some act, such as the repair of a building or helping needy students. In the case of such a condition, the legatee may not acquire the property until the fulfillment of the condition. For example if A bequeaths his house to his cousin B on the condition that B completes his university education successfully and receives his degree, B may not demand the delivery of the house until he received the degree.

6. Appointment of Executer

A. A testator may appoint in his will one or more executers to carry out his will. The executer, in order to carry out the will, must administer the estate, pay its debts, and distribute the remainder of the estate as directed by the will or otherwise required by law.

Executers are subject to supervision by judges of the Peace Court and may be dismissed by them.

B. Agreement of Inheritance

A testator may, instead of making a will, enter with another person into an agreement of inheritance. For example, a husband and wife may conclude an inheritance agreement under which they appoint their son as the ultimate successor to both their property. Unlike a will, the agreement of inheritance is not a unilateral disposition, but a bilateral contact. As a consequence, its makers are, to a certain extent, bound by agreement and the agreement is not revocable unilaterally by either of the parties. They may, however, by mutual agreement, terminate the agreement of inheritance. If the beneficiary of the agreement acts against the testator, the testator may unilaterally terminate the agreement as to such beneficiary.

IV. RESERVED PORTION

A. General

A testator is not wholly free to dispose of his entire estate as he pleases. The law limits his freedom in favour of his close relatives, by means of the ‘reserved portion’. This portion is reserved for certain relatives of the deceased. Not all persons who would be entitled to inherit by intestate succession have reserved portions. Only the descendants, fathers and mothers, brothers and sisters and the surviving spouse have rights to such a portion. The amount of the reserved portion depends on the closeness of the surviving heirs to the deceased. The new Civil Code has decreased the extent of the reserved portion and expanded the amount of free disposal by the deceased person.

(1) Descendant: their reserved portion is half of their statutory share. Thus, if the amount of the estate to be distributed is , for example, 80 billion TL, and if four children are the successors, the intestate share of each would be one fourth or 10 billion TL.

(2) Parents: their reserved portion is one fourth of their statutory share.

(3) Sisters and brothers: their reserved portion is one eight of their statutory share.

(4) Spouse: If there are descendants or parents and descendants of the deceased, the reserved portion is the entire amount of his or her right in estate. In all other instances, the reserved portion is three fourth of the statutory share.

B. Reduction of Disposition

The value of the estate is determined at the time of death.

If the disposition made by the testator’s will exceed the amount left after the reserved portions, such dispositions will be reduced. Dispositions made during the testator’s lifetime are also subject to reduction in certain circumstances.

C. Debarment from Inheritance and Loss of Inheritance Rights

A successor of the deceased who commits a felony against the decedent or his next of kin or close friends, or negligently fails in fulfilling a statutory duty to the decedent during his lifetime or to his family may be debarred from inheritance by a testamentary disposition of the deceased. The share of such a person will pass to the other successors of the deceased as if the debarred person had died prior to the decedent.

In some cases, such as where the successor intentionally kills or attempts to kill the decedent, he loses his inheritance rights automatically.

V. TRANSFER OF ESTATE

A. General

The mechanics of inheritance is one of the main concerns of the law of succession. Under Turkish law, the property of the deceased passes to his heirs in the case of intestate succession, or to his legatees in the case of a will, at his death. But who are these persons? They may not be living in the same house, or even in the same town or country. If the deceased executed a will during lifetime, this must be discovered and the validity of the will be determined.

These matters may take more than an few days to be resolved. During this time somebody must care for the assets of the deceased; the household of the deceased must have money to buy food, pay the rent and other expenses, and the business of the deceased, if any, must be run. If the deceased had debts, by whom and who will they be paid? The law of succession provides the answers to these questions by means of the principles discussed below;

B. Universal Succession

The most important principle of the Turkish law of succession is the principle of ‘universal succession’, by which is meant on the death of a person his entire property passes immediately and automatically to his universal legatees or heirs. Such persons become the owners of all property or its whereabouts. As per specific legatees under a will, they have the right to demand the delivery of their specific bequest from the heirs or universal legatees.

C. Legal Status of the Heirs Prior to the Partition of Estate

If there is more than one heir, the estate becomes the common property of all of them until the partition of the estate. The heirs (also the legatees, from a ‘community of heirs’. All of them must act together, as in the case of co-ownership, and no one of them is entitled to dispose of a single article of a property in the estate, which are made individually, without the approval of the others, are void, expect in the case of acquisition by bonafide third persons. Suits by the estate must, as a rule, be brought in common, and suits against the estate must state the names of all successors as defendants. The heirs have no statutory power to represent each other. However they may give such power of representation to one if the heirs. The creditors of any one of the heirs must wait until the partition of the estate and may not levy on any property in the estate.

Administrative acts with respect to the estate, however, require only the approval of the majority of the heirs and for the preservation of the estate each heir may take necessary protective measures himself. If an executor or administrator is appointed by the deceased or court, then the estate will be administered by such person for the benefit of the successor and creditors of the estate.

D. Determination of Heirs

Although the physical partition of the estate may be affected by the heirs themselves, the estate determines who the heirs are.

Upon the application of an heir (or legatee), the Peace Court of the last domicile of the deceased determines who the eligible heirs (or legatee) are and their shares in the estate and issued a certificate of inheritance.

The same court will initiate the necessary steps for the protection of the estate (C.C., Art 589). Thus, if any of the heirs in under guardianship, or absent, or if any of the heirs demands it, or in order to prevent someone absconding with property, the judge may order all the property of the estate put in a room, lock it under seal, or have an inventory made of the property including in the estate.

In cases where one or more of the heirs is abroad, and does not have a representative to act in his name, or if there are doubts as to the existence of other heirs (C.C., Art 592), the judge may order official administration of the estate. If the deceased has named an executer in his will, such person will be empowered by the judge to administrate the estate. If the deceased had a guardian, this person will be appointed to continue administering the estate of the deceased.

E. Debts of the Estate

Under the rule of ‘universal succession’ all rights and liabilities of the deceased pass to the heirs at the time of death. The heirs are successors not only to the assets of the deceased person, but also to his debts. Moreover, the heirs are fully liable for the debts, although exceeding the value of the estate’s assets, to the extent of their personal wealth. An heir may, however, disclaim his share of the estate within three months of the date he learns of the death of the deceased. The heirs may also demand official liquidation of the estate when none of them s prepared to take the estate.

1. Official Inventory

If there is a question whether the debts exceed the assets, the heir may ask the judge within one month after the date of death to have an official inventory made (C.C., Art 619). All creditors are asked to state their claims within a certain period of time which should not be less than one month. The inventory of assets and debts is then open for inspection for at least one month. If the heirs accept the estate on the basis of this inventory, they will not be liable for debts of the estate not shown in it.

Where the state takes an estate, for lack of heirs, its liability does not exceed the amount which it receives.

2. Official Liquidation

If the heirs think that the debts of the estate are more than the assets, they may demand, within the three months during which they are entitled to disclaim the estate, an official liquidation of the estate. In this case, the estate of the deceased is kept separate from the properties of the heirs and they will not be liable for the debts require it, may also demand an official liquidation.

The official liquidation is directed by the judge of the Peace Court or by a liquidator appointed by him.

F. Disclaimer of Inheritance

Although the estate passes automatically to the heirs of the deceased, and they become heirs common, they are, as noted above, entitled to disclaim the estate. In case of disclaimer, the estate passes to the next closest relatives of the deceased, who in turn may also disclaim the estate (C.C., Art 611). If all successors disclaim, then the state becomes the sole successor being liable for the depts. of the estate up to the amount which id received.

PARTITION AND DISTRIBUTION OF THE ESTATE

A. Distribution by the Heirs

After the debts of the deceased have been paid and his last will otherwise fulfilled, the estate will be distributed among the heirs. The heirs agree among themselves how this should be done. Property may be distributed. If there is immovable property, such as land or a house in the estate, written approval of all heirs is necessary.

B. Distribution by the Court

If the heirs cannot agree, or if a creditor requests it, a suit may be brought in court for the distribution of the estate. The law governing distribution by the court includes certain provisions regulating the partition of those goods which have historic values for the family or agricultural lands. Under the new Civil Code the surviving spouse has a special right to demand the family property and the ownership of the house in which the spouses were living together.

-----------------------------------------------------