The certificate of inheritance, also referred to as the certificate of succession, is an official document setting out who the heirs are and the proportion of the estate to which each is entitled, and enabling the heirs to deal with the assets of the estate.
Without this document it is not possible to have title transferred at the land registry, to gain access to the testator’s bank accounts, to carry out inheritance and transfer tax formalities, or to take other official steps relating to the estate. That is why it is regarded as one of the most fundamental documents in the law of succession.
Below we examine when the document is to be obtained from a notary and when from the court, the procedure for applying, the persons entitled to apply, and the avenues available against certificates that do not reflect the true position.
The Certificate of Inheritance and Its Legal Character
A certificate of inheritance shows which of those surviving the testator are regarded as heirs and the proportions to which their shares correspond. Its basis is Article 598 of the Turkish Civil Code No. 4721, and the conduct of dealings relating to the estate depends upon it.
With this document the heirs may carry out their dealings at the bank and at the land registry, discharge their obligations in respect of inheritance and transfer tax, and complete the other official processes concerning the estate. That is why it is the most frequently used document in succession practice.
The point to be emphasised as regards the legal character of a certificate of inheritance is this: it is not a judgment determining the position of the heirs with the force of res judicata. It is treated as valid until the contrary is shown.
If it later emerges that the information it contains does not reflect the true position, if a new heir comes to light, or if the shares have been calculated incorrectly, the certificate may be rectified or annulled altogether.
Obtaining a Certificate of Inheritance from a Notary
Article 71/A of the Notaries Act No. 1512 confers on notaries the power to issue certificates of inheritance where certain conditions are met. The purpose is to enable citizens, in files where the picture of heirship is clear and uncontested, to obtain the document more quickly without going to the Civil Court of Peace.
This power is not unlimited. Notaries are not permitted to act in files involving a foreign element, in which the civil registry records do not tally with one another, or which call for legal assessment; in such cases the application must be made to the Civil Court of Peace.
Cases in Which a Notary May Act
Notaries may issue a certificate of inheritance in files where the picture of heirship can be read from the civil registry records without leaving room for doubt. For this it is necessary that the testator be a citizen of the Republic of Türkiye, that the civil registry records be both complete and internally consistent, that the statutory heirs be capable of being identified without hesitation, that there be no dispute between the parties as to heirship, and that no special circumstance such as a will, an inheritance agreement or the appointment of an heir be in play.
The notary’s office identifies the heirs and the proportions of their shares following an examination carried out through the civil registration system and MERNİS data, and prepares the document.
In the familiar patterns of statutory heirship — a surviving spouse, children and parents — it is frequently seen in practice that a result can be obtained from a notary within a short time.
Cases in Which a Notary May Not Act
The legislature has expressly provided that notaries lack the power to act in certain situations calling for judicial examination and legal characterisation. A notary may not issue a certificate of inheritance in the following cases:
- The file involves a foreign element
- It is necessary to examine civil registry records of a foreign country
- There are gaps in the civil registry records or information that is inconsistent
- There is an adoptive relationship in the civil registry record that gives rise to argument
- A dispute arises as to parentage
- There is a will or an inheritance agreement
- It is alleged that an heir has been appointed
- A dispute arises between the parties as to heirship
- The status as heir, or the date of death, of one of the heirs cannot be determined
In these situations the notary declines the application and the interested parties must turn to the Civil Court of Peace.
Documents Required for a Notary Application
The following documents are generally sufficient to obtain a certificate of inheritance from a notary: the testator’s Turkish identity number, identification for the heir making the application, the burial permit or death certificate if available, and, where required, extracts from the civil registry records.
Since notaries’ offices can for the most part access civil registry records directly through MERNİS, it may in practice be unnecessary to submit further documents. Where there is a gap or a doubt in the records, however, additional documents may be requested.
Obtaining a Certificate of Inheritance from the Civil Court of Peace
In files where a notary has no power to issue the document, or which call for legal examination, the certificate of inheritance is sought from the Civil Court of Peace. Where a foreign element is present, where the civil registry records conflict, or where the picture of heirship gives rise to doubt, that court is the competent authority.
The court identifies the heirs and their shares by examining the civil registry records, official documents, any wills and other evidence. The document issued is an official document that retains its validity until the contrary is proved.
The Application and the Court with Territorial Jurisdiction
An application for a certificate of inheritance is a matter of non-contentious jurisdiction. Upon application, the court determines the heirs and their shares by assessing the civil registry records and the related documents.
Contrary to a widespread belief, the rules of territorial jurisdiction are separately laid down for this application. Under Art. 11(3) and Art. 384 of the Code of Civil Procedure No. 6100, the application may be made to the Civil Court of Peace at the testator’s last place of residence, or equally to the Civil Court of Peace at the place of residence of any one of the heirs.
The interested parties are therefore not bound by the deceased’s last place of residence; the court of the place where any one of the heirs lives may also entertain the application.
The Examination Carried Out by the Court
Upon application the court first addresses the civil registry records and the position as to heirship. In that context extracts from the civil registry records, death records and family registry tables are examined; enquiry is made as to whether there is a will or an inheritance agreement; and other legal circumstances capable of affecting the status of heir are taken into account.
Where it considers it necessary, the court may request further documents, write to the relevant institutions or hold a hearing. Where there is a dispute as to parentage, an adoptive relationship, a foreign judgment or the status of heir, the examination extends to a wider scope.
Documents to Be Submitted and Civil Registry Records
Applications to the Civil Court of Peace are generally accompanied by an application petition together with the applicant’s identity document, the testator’s death certificate and extracts from the civil registry records. Where the file contains a will or related court decisions, these too are annexed; where there are foreign official documents, they are produced together with their translations.
It is also possible for the court to request the records from the relevant civil registry offices of its own motion. In files involving records of an early date or closed records, changes of citizenship or differences in names, further enquiry may be necessary.
Assessment of Foreign Official Documents
Where a foreign element enters into the succession, the court may also examine foreign official documents. Birth records, death certificates, court decisions and citizenship records drawn up abroad may be decisive in the examination of heirship.
The use of such documents in Türkiye depends in most cases on an apostille, consular certification and sworn translation. Where the application of foreign law is called for, the court also has regard to the rules of private international law.
Contested Questions of Heirship
Where the status of heir becomes contested, the examination carried out by the Civil Court of Peace is widened. In practice the dispute arises from matters such as the emergence of a previously unknown heir, an argument as to parentage, an adoptive relationship, the validity of a will, an allegation of disinheritance or a contention that the shares have been incorrectly determined.
In such cases the document issued does not carry the force of res judicata; the interested parties may at any time seek the annulment of the certificate of inheritance or a declaration as to heirship.
Who May Request a Certificate of Inheritance?
The right to apply is not confined to the heirs; other persons with a legal interest may also request that the document be issued. The legislation affords those with an interest in the determination of the status of heir or of the shares the opportunity to make such an application where the conditions are met.
Although in practice it is the statutory heirs who most often apply, appointed heirs, legatees and, in some cases, creditors of the estate may also take this course.
The Right of Statutory Heirs to Apply
Statutory heirs have the right to seek a certificate of inheritance. According to the order of succession prescribed by law, the surviving spouse, the descendants and children, the parents, the siblings, the grandparents and the State may make such an application.
It is not necessary for the application to be made by all the heirs jointly. A document showing all the heirs may be issued upon the application of a single heir.
Appointed Heirs and Legatees
The testator may have appointed a person as heir by will or by inheritance agreement. Appointed heirs may likewise seek a certificate of inheritance in order to have their status determined.
Since it is not open to a notary to assess the position of an appointed heir, however, such applications must for the most part be made to the Civil Court of Peace.
A legatee does not hold the status of heir; where he has a legal interest in the performance of the will, however, he may seek the determination of the position as to heirship for the purposes of certain dealings.
Creditors and Other Interested Parties
Creditors of the testator or of the heirs may also request that the document be issued where they have a legal interest. Creditors of the estate, creditors conducting enforcement proceedings, co-owners in an action for the dissolution of joint ownership and the parties to an agreement for the assignment of a share in an estate may need the picture of heirship to be settled.
The basis on which such persons apply is not the status of heir but their existing legal interest. The court decides whether the application is to be granted by assessing the applicant’s legal interest.
Is the Application Subject to Any Time Limit?
An application for a certificate of inheritance is, as a rule, subject neither to a preclusive period nor to the statute of limitations. The heirs may seek the issue of the document even where many years have passed since the death.
Obtaining the document late nevertheless gives rise to a variety of practical difficulties. Dealings concerning bank accounts, transfers at the land registry, inheritance and transfer tax processes and steps towards division may all be held up.
The reason the application is not subject to a time limit is that it is not in itself a claim to a right in rem or to a debt.
The Consequences of Delay
Although the application is not subject to a time limit, waiting has legal and financial repercussions. Failure to file the inheritance and transfer tax return in time may give rise to default interest or a tax penalty; transfers at the land registry may be disrupted; dealings on bank accounts may be blocked; the liquidation of the estate and the process of division may be prolonged; and in some proceedings a risk of loss of rights may arise.
In files where there is a possibility of disagreement among the heirs, obtaining the document as early as possible is therefore important.
Objecting to and Annulling a Certificate of Inheritance
Although a certificate of inheritance is official in character, it does not carry the force of res judicata. It may therefore be challenged at any time on the ground that it was drawn up incorrectly or does not reflect the true position.
Where the civil registry records are incomplete, where an heir subsequently comes to light, where there are arguments as to parentage or where the shares have been miscalculated, the rectification or annulment of the document arises.
A Certificate That Does Not Reflect the True Position
A document may have been drawn up contrary to the true position as a result of an incomplete examination, an erroneous civil registry record or a mistaken assessment. Examples of such errors include an heir not appearing in the document at all, children of a previous marriage not being taken into account, an adoptive relationship being overlooked, the proportions of the shares being miscalculated, or the proportion falling to the surviving spouse being incorrectly determined.
In such cases the interested parties may seek the rectification or annulment of the document.
Action for Annulment of a Certificate of Inheritance
The contention that the document does not accord with the true position is raised by an action for the annulment of the certificate of inheritance. The object of the action is to establish the legal invalidity of the certificate in hand and to set out the true picture of heirship.
The court determines the true position by assessing together the civil registry records, official documents, any wills, records of parentage and the contentions and evidence put forward by the parties. In accordance with the judgment given, the existing document may be annulled in its entirety or its rectification may be ordered.
An Heir Who Emerges Later
The existence of a new heir may become apparent after the document has been issued. The subsequent establishment of the parentage of an unacknowledged child, the emergence of a previously unknown marriage, the later identification of heirs abroad or the discovery of an adoptive relationship may be given as examples.
Where this occurs, the certificate in hand ceases to reflect the true position and the new heir may seek its annulment or rectification.
Incorrect Determination of Shares
A certificate of inheritance shows not only who the heirs are but also their shares. The incorrect calculation of the proportions is therefore in itself a ground for annulment or rectification.
The errors most frequently encountered in practice are the misapplication of the system of classes of heirs, the incorrect calculation of the proportions falling to the descendants, the incorrect determination of the surviving spouse’s share, and a failure to take account of the relationship between the reserved portion and an appointed heir. In such cases the court may be asked to determine the shares afresh.
Subject-Matter and Territorial Jurisdiction
Whereas an application for the issue of the document is treated as a matter of non-contentious jurisdiction, an action for annulment brought on the ground that a certificate already issued does not accord with the true position falls within contentious jurisdiction. In such actions subject-matter jurisdiction therefore belongs, as a rule, to the civil court of first instance.
As regards territorial jurisdiction, under Art. 11(3) of the Code of Civil Procedure No. 6100 the action may be brought before the court of the place of residence of one of the heirs or equally before the court of the place of residence of one of the respondents. The other heirs who appear in the erroneous document as holding a share to which they are not entitled must be named as respondents.
Independent Legal Assessment
A certificate of inheritance is often regarded as a routine paperwork exercise; yet the land registry transfers and banking transactions carried out on the strength of it may produce consequences that are difficult to undo. Transfers effected on the basis of an incomplete or erroneous certificate become the source of annulment actions brought years later and of arguments about the good faith of third parties.
Attractive though the speed of the notary route may be, not every file is suited to it. Where there is a foreign element, an adoptive relationship or a disposition upon death, the correct address from the outset is the Civil Court of Peace; an application to the wrong authority merely wastes time.
In any given file we consider it useful to address the following matters as a priority:
- Assessing before applying whether the picture of heirship is suited to the notary route
- Resolving in advance any differences of name, date or closed record in the civil registry records
- Enquiring whether there is a disposition upon death, so as to settle the possibility of an appointed heir
- Completing in full the apostille, certification and translation requirements for documents originating abroad
- Separately verifying the proportions of the shares as regards the system of classes of heirs and the surviving spouse’s share
- Directing the action for annulment against all those who appear in the document as holding a share to which they are not entitled
Independent Legal advises on and conducts succession matters throughout, from obtaining a certificate of inheritance to actions for the annulment of certificates that do not reflect the true position.