INHERITANCE LAWYER ISTANBUL, TURKEY
It has been seen that “principle of continuity of private property” lies at the root of inheritance law. By the continuity of private property, it is understood that the thing subject to private property will be transferred to third parties upon death of the legator, not to the State, and that otherwise, it would not have been possible to talk about a real right of property. In doctrine, inheritance law is explained as whole of the rules that regulate the fate of the inheritable rights and debts and other legal relations that do not end with the death of the inheritor. In short, we can define the law of inheritance as a legal discipline that regulates safe distribution of assets of a real person after his/her death or disappearance. Provisions of inheritance law are regulated detailly in 4721 numbered Turkish Civil Code. In this article prepared by our inheritance lawyers in Turkey, we aim to provide preliminary information about testamentary dispositions for our client candidates. Since each concrete case should be evaluated on its own merits, our inheritance lawyers make detailed analysis and legal assessment regarding each query and provides to her clients case basis legal consultancy. MESCI Law Firm provides legal services to her client candidates who are in search of inheritance lawyers in Turkey in all sub areas of inheritance and elder law.
Heirs are divided into two as legal heirs who are relatives of the inheritor, and heirs who are voluntarily appointed by the inheritor with testamentary dispositions. In Turkish law, descendants, ascendants, child born out of wedlock, adopted child and spouse of the legator are considered as his/her legal heirs. The appointed heir on the other hand, can be defined as the person the legator inherited by his own disposition, although mentioned person is not the legal heir of the legator. On the other hand testamentary disposition is defined as a legal transaction that includes the orders of the legator that will become effective after his death. This legal transaction can come into existence in the form of a will or in the form of an inheritance contract. In Turkish law system, it is possible to make a will in handwritten, official and in extraordinary situations verbally; while on the other hand inheritance contract can only be made officially as per Turkish Civil Code, Article 545. Another difference between these two testamentary dispositions is that the will can be made by anyone who has reached the age of 15 and has the power to distinguish, whereas the inheritance contract can only be made by people with full capacity to act.
As per Article 532 of Turkish Civil Code, wills made with the participation of two witnesses before a notary public, civil magistrate or authorized official are called official wills. Holographic wills are on the other hand regulated under Article 538 of Turkish Civil Code. According to mentioned article, it is obligatory for the holographic will to clearly contain day, month and year it is issued and to be written from the beginning to the end by handwriting of the legator and signed by the legator himself. It is possible for holographic wills to be easily falsified, destroyed or not found, and the legator can be easily influenced while issuing it. It is possible to eliminate these issues, which are shown as a drawback of holographic wills, by depositing the will to be kept as per Article 538/2 of Turkish Civil Code; a holographic (handwritten) will can be left open or closed to a notary public, to a civil magistrate or authorized official. On the other hand, the deposit of a holographic will to a notary, civil magistrate or authorized officer for safekeeping is not a condition of validity, an undelivered holographic will also will be considered valid if it meets all the legal requirements.
If the inheritor cannot make an official or holographic will due to extraordinary circumstances such as imminent danger of death, disruption of transportation, disease and war, he may issue a nuncupative will (Article 539). A nuncupative will consists of two main phases. First, the legator reveals his last wishes to two witnesses under extraordinary circumstances and assigns them the task of writing or dictating a will in accordance with his explanations. Afterwards, if mentioned witnesses accept the duty that the legator has assigned to them, one of the witnesses issues and signs the last wishes and desires of the legator by writing the place and date of the declaration and have the other witness sign it, and both witnesses go to the court without wasting time together. Instead of presenting a written text to the court, the witnesses can apply to the court without delay and convey the last wishes and desires of the legator to the judge. In this case, a report is drawn up in front of the judge and signed by the witnesses. The important thing is that the witnesses shall fulfill their duty immediately, in this way, it is aimed to prevent the heirs from interfering in the process of issance of the will in any way and to deflect the last wishes of the legator.
Another type of testamentary disposition in the formal sense is the inheritance contract. An inheritance contract is a bilateral testamentary disposition made between the legator and a third party in which the legator either makes a material death related disposition on his own estate or that the third party renounces the right of heirship that will arise in the future on his own estate. According to Article 545 of the Turkish Civil Code, in order for the inheritance contract to be valid, it must be drawn up in the form of an official will. The parties to the contract express their wishes one after the other and sign the official will in from of the authorized officer and two witnesses. We can say that an inheritance contract has benefits for different occasions such as it can be used to reward loyalty built in partnerships that are not protected by law, to give assurance to life partner in order to provide a secure future for the spouse when it is made between spouses and to provide assurance of being cared for the legator himself until his death.
In Turkish inheritance law system, if the legator makes a testamentary disposition, the share is made in such a way that the reserved shares of the legal heirs of the legator remains and only the diposable estate is calculated. In this context, the fraction to be found upon subtracting the fractional number, which represents the total of the reserved shares, from 1, by accepting the inheritance as an integer, represents the savings rate of the legator. The heirs with reserved portions, which are counted in our Turkish Civil Code, are shown as the descendants of the legator (children, adopted children, grandchildren and their children), the mother and father of the legator and the spouse of the legator. Pursuant to Article 506 of 4721 numbered Turkish Civil Code, half (½) of the legal inheritance share for the descendants of the legator, one quarter (¼) of the legal inheritance share for each of the parents (mother and father) is considered as reserved portions. Again as per the same article, for the surviving spouse to being heirs together with the descendants of the deceised or mother-father of the deceised, the entire legal inheritance share stated in law, and in all other instances where spouse is for example a heir alone, three-quarters (¾) of the legal inheritance share stated in law is considered as reserved portions. When calculating the estate, it shouls not be forgotten that there are values that can be legally deducted from the estate, such as funeral expenses and debts of the legator. If the legator has not made a testamentary disposition, the estate is only shared between the legal heirs on the basis of the legal inheritance shares. The legator must have acted in a way that does not exceed the reserved portions that we have just mentioned while making testamentary dispositions. Otherwise, the sharing will still be valid, but the heirs whose reserved shares are violated can substitute an action for reduction in terms of the violated parts.
Having clients all around the World, MESCI Law Firm has a team consisting of lawyers specialized on Turkish inheritance law that can assist you in almost all legal procedure regarding inheritance law such as obtaining certificate of inheritance, preparing wills and inheritance contracts, executing inheritance and succession transactions, filing a renunciation of inheritance lawsuit, filing a lawsuit regarding cancellation of the unlawful testamentary disposition, filing a lawsuit regarding determination of the estate, filing a lawsuit regarding elimination of joint ownership, filing an action for reduction and following up related legal transactions. Our lawyers are known to be able to solve complex matters, provide strategic moves and maximize the chance of success in inheritance lawsuits. We are all about hearing you, we aim to provide quality services regarding inheritance law in the shortest time possible so please don’t hesitate to contact us for a consultancy. MESCI Law Firm has also become a frequent destination for elders lately since our inheritance lawyers in Turkey are also experienced in elder law dealing with estate planning, guardianship/conservatorship, cost meeting planning regarding long-term caregiving need issues, elder abuse problems in Turkey. Our lawyers deeply understand that legal transactions are governed by complex and constantly changing regulations that require a unique understanding of the personal impacts of aging thus provides you a reliable advisor making every blurry problem remediable.
We find it necessary also to mention for our foreign clients that, for inheritance cases containing the element of foreignness, International Private and Civil Procedure Law (hereby will be referred to as MÖHUK) determines the applicable law for movables and immovables to be transferred to inheritors. According to Article 20 of MÖHUK, the national law of the deceised shall govern inheritance but Turkish law shall apply to immovable property located in Turkey. This means that for movable properties in the heritage located in Turkey, national law of the deceised shall be applied while for immovable properties in the heritage located in Turkey, Turkish law as the close related law shall be applied thus for foreign heirs two different certificates of inheritance is being issued one being for the movables and the other for immovables. The inheritor shall have the qualification of heirship under national law of the deceised in order to acquire the inheritance rights over the immovables owned by the foreign deceised which are located in Turkey. In such a case the heir shall apply to the Court of Peace to obtain the certificate of inheritance. Inheritors shall gain the possession and real rights regarding the immovable directly according to Law. However in practice, there are inheritance transfer transactions to be fulfilled by the heir. The transfer of the movable and immovable properties of the deceised is made according to the ratio of inheritance shares written in the certificate of inheritance. For the transactions to be completed after obtaining a certificate of inheritance please contact our inheritance lawyers in Turkey.
OUR RANGE OF SERVICES AS INHERITANCE LAWYERS IN TURKEY
- Obtaining certificate of inheritance through notary public or by filing a lawsuit before the Courts of Peace.
- Filing and following up action for the annulment of the inheritance certificate.
- Drafting and preparing renunciation of the inheritance agreement.
- Filing and following up a declaratory action regarding determination of the invalidity of the renunciation of the inheritance.
- Determination of the heritage to be subject to proportion and filing of a lawsuit of partition regarding dissolution of the partnership.
- Issuance of will and inheritance contract.
- Cancellation of will and inheritance contract. Filing lawsuit for protection of the legally reserved shares.
- Issuance of the contract for lifelong support.
- Filing and following up a case of disappearance and transfer of assets to the treasury.
- Filing renunciation of inheritance lawsuit and following mentioned lawsuit.
- Filing cancellation of renunciation of inheritance lawsuit if the heir in debt renunciates the inheritance to creditors in purpose.
- Obtaining certificate of inheritance in case of renunciation of inheritance.
- Debarment from inheritance / disinheritance.
- Filing a declaratory action regarding determination of loss of inheritance rights.
- In case of fictitious transaction of the testator, filing and following up cancellation of land registration lawsuit.
- Filing a lawsuit regarding determination of the heritage and heirship, that the heritage is in debt, filing an action for partition, filing an action regarding issuance of the official inheritance book.
- Filing equalization in inheritance case.
- Filing a hereditatis petitio lawsuit which is an action for recovery of property due to inheritance.
- Filing a lawsuit regarding appointment of a representative to the inheritance partnership until the inheritance is shared.
- Filing a lawsuit for determination of the owner and the legator stated in the land registry are the same person.
- Filing a lawsuit in order to transform the collective ownership to joint ownership.