Inheritance/succession law deals with the passage of a person’s property rights at his/her death.
It is a generally accepted rule that, in the absence of an express provision made by a deceased person, his estate will, by operation of law, go to his close relatives upon his death. Persons with such rights of inheritance are called heirs. A person is said to die “intestate” when he dies without making a will. In such case, the property of the deceased will be disposed of under the laws of descent (I).
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. They may execute wills, by which they leave their property to real or legal persons as they choose. This is called “testate succession” (II).
This 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” (III).
Inheritance law also regulates the transfer of the estate (i.e. the total property owned by the deceased prior to the distribution) (IV) as well as its partition and distribution among all the co-heirs (V), according to their respective rights.
I. Statutory Successors/ Intestate Succession
If the deceased has failed to make a will or otherwise provide for the distribution of his estate at his death, his estate will pass, in the proportions prescribed by law, to his relatives. For this purpose, the blood relatives of a deceased person are divided into groups which are called “parentals”.
The first parental consists of the descendants of the deceased (i.e. children, grandchildren), the second of his parents and their descendants (i.e. parents, brothers, sisters), the third of his grandparents and their descendants (i.e. grandparents, uncles, aunts). If the deceased leaves no surviving heirs, his estate becomes the property of the State. The following rules apply to the operation of system of parentals :
As long as one member of the first parental is alive, the second or third parentals will be eliminated. For example, if the deceased leaves one child, parents or grandparents of the deceased will not receive anything.
Among the members of each parental, those nearest in degree take priority over those further removed and any predeceased person will be represented by his or her descendants. For example, is the deceased (D) leaves one child (C), C will be his sole successor. But if C had died before D, then the surviving child/children of C (D’s grandchildren) but not for example D’s parents, will take the estate.
Surviving successors in the same degree of closeness to the deceased in the same parental, receive equal shares and there is equality between male and female successors. For example, if D dies leaving two sons and one daughter, each of them will receive 1/3 of the estate. If one of the sons had died before D leaving, leaving two children, his share will go to them, making each of their shares 1/6 th of the whole estate.
In case of several marriages, children born during different marriages will all get the same treatment. They all are included in the first parental and will inherit from both their natural mother and natural father regardless of whether or not their parents are married at the time of the death of either one of their parent. However, step-children (i.e. children of one of the spouses by a former marriage) do not inherit as they are not blood related to their step-parent. Each child inherits from his/her natural parents.
Other possible inheritors
1. Illegitimate children
Illegitimate children (i.e. children born from unmarried parents) have the same rights of inheritance from their mother as legitimate children. Illegitimate children recognized by their father or whose paternity is established by a court may inherit from their father, equally to the legitimate child. For example, when D leaves two legitimate children and one illegitimate child, each will receive 1/3 of the estate.
2. Adopted children
Adopted children are treated the same way as the legitimate natural born children of the deceased and thus receive the same amounts as his other children. However, an adopted child may only inherit from his adoptive parents and is not a successor of relatives of his adoptive parents.
Furthermore, the inheritance relationship works only one way : the adoptive parents will not receive from the adopted child’s estate if the child predeceases them. As adopted children are the successors of their real parents, they may inherit from both their adoptive and real/natural 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 successors of the deceased with whom she/he has to share the estate. If there are close relatives, such as children, the surviving spouse receives less; if there are only distant relatives, she/he receives more. For example, if the surviving spouse inherits together with the descendants (children, grandchildren) of the deceased, she/he gets ¼ th of the ownership. If the surviving spouse inherits together with the second parental (parents, siblings) she/he receives ownership of ½ of the estate. If she/he inherits with the third parental (grandparents, uncles, aunts), she/he gets ownership of ¾ th of the estate. If there are no relatives from the third parental, she/he becomes the sole legal successor and takes the whole ownership.
In order to be a successor of the deceased, the spouse must be married to the deceased at the time of his death. As a result, ex-spouses do not inherit any property even if they have common children.
II. Testamentary Dispositions / Testate Succession
A person may dispose of his property as of his death within the limits of reserved proportion (see section III), by executing during his lifetime a will (A)or by entering into an agreement of inheritance (B).
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.
A person who has completed fifteen years of age and having full mental capacity can execute a will within the limits and the form prescribed by law.
A will must be made in a form required by law in the following manners :
The authentic or official will
This is a will which is prepared by an official such as a notary or a Peace Court judge in accordance with the directions of the testator.
The testator then reads the text and accepts its contents by signing it. Thereafter, the will is dated and signed by the official himself. Finally, the testator, expresses in the presence of two witnesses that he has read the text and that it is his last will. The witnesses also sign a statement on the will that they found the testator capable of executing the will and that he accepted in their presence its contents.
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.
The authentic will provides security in that it is less likely to be declared void after the death of the testator, as is frequently the case with other forms of will. On the other hand, it entails notarial expenses and does not have the privacy of the holographic will.
The holographic (handwritten) will
This type of will is entirely written by the testator himself with his own handwriting. It must also include 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. The holographic will is easy to prepare. It may be prepared anywhere, it enables a person to keep the contents secret and it does not require any witnesses. It may however be refuted with the assumption that the testator was mentally incapacitated at the time when he signed the will.
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 wholly or partly at anytime. The revocability of a will is one of the essential characteristics, and the testator cannot before his death waive his power to revoke it.
A will may be revoked in several ways. It may be revoked by making a new will. If the new will is inconsistent with the former one, it replaces the earlier will. The new will does not need 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 one without revoking it entirely, is called a codicil.
Beneficiaries designated in wills are called legatees. There are two sorts of legatees :
- Appointed legatees : those who receive all or a fraction of the estate,
- Particular legatees : those who are the recipients of specific legacies, i.e. a specific article of property (e.g. a watch, furniture, a sum of money)
5. Appointment of Executor
A testator may appoint in his will one or more executors to carry out his will. The executor must administer the estate, pay its debts and distribute the remainder of the estate as directed by the will or otherwise required by law. Executors are subject to supervision by judges or Peace Court and may be dismissed by them.
Agreement of Inheritance
Instead of making a will, a testator may 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 their property. Unlike a will, the agreement of inheritance is not a unilateral disposition, but a bilateral contract. As a result, the agreement is not unilaterally revocable by either of the parties. They may, however, terminate the agreement of inheritance by mutual consent. The parties to an agreement of inheritance must express their will and sign the agreement in front of a notary or Peace Court judge and two witnesses.
III. Reserved Portion
A testator is not wholly free to dispose of his entire estate as he pleases. The law limits his freedom in favor of his close relatives, by means of the “reserved portion”. This portion is reserved for only certain relatives of the deceased, namely descendants (children, grandchildren), father and mother, brothers and sisters and the surviving spouse have rights to such portions. The amount of the reserved portion depends on the closeness of the surviving heirs to the deceased.
1. Descendants : their reserved portion is half of their statutory share
For example, if the amount of the estate to be distributed is 80,000 $, and if four children are the successors, the statutory share of each would be one fourth or 20,000 $. Therefore, in the event of a will, the reserved portion of each child is half of this amount, or 10,000$. This leaves the deceased free to dispose of the remaining 40,000 $ (80,000 - 40,000) of his estate.
2. Parents : their reserved portion is one forth of their statutory share
3. Sisters and brothers : their reserved portion is one eigth of their statutory share
4. Spouse : if the spouse inherits together with the first or the second parental, her reserved portion is equal to her statutory share (indicated in I,B,3 above). In other words, if the spouse inherits with the first parental, his/her reserved portion will be ¼ th and ½ if he/she inherits with the with the second parental ). If the spouse inherits with the third parental or if he/she is the sole heir, the reserved portion is ¾ th of the statutory share.
As an example : When a man dies with a 80,000 $ distributable estate, leaving a wife and three children, the statutory share of the successors would be 20,000 $ each. The reserved portion of the children is therefore 10,000 $ (20,000 x ½) and of the wife 20,000 $ (equal to her statutory share). This leaves, 30,000 $ (80,000 – 50,000) which the deceased is free to dispose of by will.
IV. Transfer of estate
Under Turkish law, the property of the deceased passes to his heirs (statutory successors) in the case of intestate succession, or to his legatees in the case of a will, at his death. It is however not always easy to determine who these persons are as they may not be living in the same town or even the same country. If the deceased executed a will, during his lifetime, this must be discovered and its validity be determined.
1. Legal status of the heirs before 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. All of them must act together, as in the case of co-ownership and none of them is entitled to dispose of a single article of property in the estate without the concurrence of the others. Lawsuits must be brought in common and lawsuits against the estate must state the name of all the heirs as defendants.
2. Determination of heirs
Upon the application of an heir (or legatee), the Peace Court determines who the eligible heirs (or legatees) are and their shares in the estate and issues a certificate of inheritance.
3. Debts of the estate and disclaimer of inheritance
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. In some cases, the wealth left as inheritance may not be sufficient to cover the debts of the deceased. An heir who wishes not to be liable for the debts may disclaim his share of the estate within three months of the date he learns of the death of the deceased. In case of disclaimer, the estate passes to the next closest relatives of the deceased, who in turn, may also disclaim the estate.
4. Applicable law to properties situated abroad
If the deceased owned movable assets in a foreign country, in order for the heirs to dispose of such assets, decisions rendered by Turkish Courts (such as certificate of inheritance) need to be enforced/recognized in this foreign country.
It is accepted under Turkish law that transactions regarding immovable property are governed by the law of the country where the immovable property is located. In other words, Turkish law does not provide rules for these immovables and refers to the law of the country where the immovables are situated. For example, if the deceased owned a house in France, the transfer of property shall be executed in accordance with the provisions contained in French Private International Law.
V. Partition and Distribution of the Estate
Partition of the estate is the division of the effects of which the estate is composed among all the co-heirs. It may be voluntary when it is made with the mutual consent of all the heirs or judicial, when it is made by the authority of the court.
Distribution by the heirs
After the debts of the deceased have been paid, the estate will be divided and distributed among the heirs. The heirs may agree among themselves how this should be done. Property may be distributed in kind, or sold and the proceeds distributed. If there is immovable property, such as a land or a house in the estate, written approval of all heirs will be necessary.
Distribution by the court
If the heirs cannot agree, a lawsuit may be brought before the court for the distribution of the estate.
VI. Inheritance Taxes
Inheritance tax is a tax imposed upon the privilege of receiving property from a deceased person. Even though the heirs or legatees of the deceased become the owners of the property of the deceased on his death, the transfer of property can not be completed unless inheritance taxes have been paid.
To that end, the heirs need to submit a tax declaration to the tax administration in the following time periods:
if death took place in Turkey : within four months following the date of death if the heirs are in Turkey, and within six months if they are in a foreign country,
if death took place in a foreign country, within six months following the date of death if the heirs are in Turkey, within four months if they are in the country where death took place, and within eight months if they are in a foreign country other than the country where death took place.
While some of the property of the deceased is exempted from tax ( house furniture, personal belongings, family souvenirs etc.), there are also certain exemptions granted on the amount of tax due by the close relatives, namely, the descendants (including adoptive children) and the surviving spouse. The tax tariffs are re-evaluated and adjusted every year.