The question of who receives the assets left behind at the moment of death, and in what proportions, is not a matter left to the will of the parties. Statutory succession is a system in which this transfer is governed by the statute itself, and the Turkish Civil Code sets out in detail both the persons who hold the status of heir and the order and proportions in which they become entitled.
The method adopted by Turkish law is that of classes of heirs. Within this framework, whether the status of heir arises in respect of the descendants of the deceased, the surviving spouse, the parents, the grandparents and the adopted child, and what the respective shares are to be, is determined according to the provisions of the statute.
In the briefing note below we examine, in turn, who is regarded as a statutory heir, the criteria by which shares are calculated, the heirs who benefit from the protection of the reserved portion, and the fundamental principles governing the division of the estate.
The Concept of Statutory Succession
Statutory succession means that, upon a person’s death, the estate passes to the persons designated in the statute without any further transaction being required. Unless the deceased has established a different arrangement by means of a valid will or contract of succession, the assets pass directly to the statutory heirs determined by the Turkish Civil Code.
The Statutory Basis of the System
The relevant provisions are contained in Articles 495 to 501 of the Turkish Civil Code No. 4721. These articles set out in detail who holds the status of statutory heir, how the system of classes operates, the position of the surviving spouse and the circumstances in which the State becomes an heir.
The legislator’s purpose in enacting these provisions is to prevent the estate from changing hands in a fragmented and contentious manner, and to ensure that the transfer takes place in a defined order and sequence. In this way the process of division becomes predictable and legal certainty is secured in respect of the rights of the heirs.
Succession Arising from Statute and Succession Based on Intention
The source of statutory succession is the statute itself; in the case of an appointed heir, by contrast, the source is the intention expressed by the deceased in a will or a contract of succession.
The practical consequence of this distinction is as follows: statutory heirs acquire the status of heir automatically, even where the deceased has performed no legal transaction at all. In the case of an appointed heir, however, a valid disposition upon death is essential; in the absence of such a disposition there can be no appointed heir.
The System of Classes of Heirs
The succession of blood relatives is founded in Turkish law on the principle of classes. A class means the grouping of blood relatives according to their degree of proximity to the deceased and the determination of succession according to the order between those groups. Our statute provides for three classes within this framework.
The order is strict: a subsequent class can come into play only where there is no heir in the class preceding it. The position of the surviving spouse is different; although the spouse does not belong to any class, the spouse takes a share of the estate together with whichever class inherits.
The First Class
The descendants of the deceased come first. Descendants comprise the children, the grandchildren and the subsequent generations born of them. If the children of the deceased are alive, the estate is in the first instance divided equally between them.
Where one of the children has died before the deceased, the share that would have fallen to that child passes to that child’s own descendants; in this way the grandchildren take the position of their deceased mother or father and become heirs.
The statute also counts the adopted child and that child’s descendants within the first class.
The Second Class
The second place is occupied by the parents of the deceased and their descendants. Siblings, nephews and nieces and their descendants are therefore assessed within this class.
The ability of this class to inherit depends on there being no descendants of the deceased. If the parents are alive, the estate is divided equally between them. Where one of them has died before the deceased, that person’s share passes to that person’s own descendants.
The Third Class
Last in the order come the grandparents of the deceased and their descendants. Relatives such as uncles and aunts fall within the scope of this class.
The succession of the third class arises where there is no one at all in the first two classes. Where one of the grandparents has died before the deceased, that person’s share passes to that person’s own descendants.
The Relationship of Priority Between the Classes
The system of classes contains within itself an order of precedence. If there is a person holding the status of heir in an earlier class, the subsequent class is excluded in its entirety.
If, for example, the deceased has a living child or grandchild, the class of the parents can take no share of the estate. In the same way, so long as there is an heir in the second class, the third class is not reached.
The conclusion to be drawn is this: the criterion determining succession is not the degree of kinship taken on its own, but the class in which the person is situated.
The Principle of Representation
Representation describes the filling, by that person’s own descendants, of the gap left by an heir who has died before the deceased. By virtue of this principle the share passes to the children of the deceased heir and to subsequent generations.
Where, for instance, a child of the deceased has died before him but that child’s own children are alive, the grandchildren take the place of their deceased mother or father and acquire the status of heir. The same mechanism applies in respect of the second and third classes.
Statutory Heirs and Their Shares
For the purposes of the Turkish Civil Code, the circle of statutory heirs is drawn as follows: descendants, the surviving spouse, the parents, siblings, the grandparents, the adopted child and, where certain conditions are met, the State. The shares of these persons are not fixed; they vary according to the class in which the heir is situated, the existence of other persons inheriting at the same time and whether or not the spouse is alive.
Descendants occupy first place in the system. Where there are descendants, the second and third classes cannot acquire the status of heir. The spouse, although situated outside the classes, participates in the estate together with whichever class inherits.
The Succession and Share of the Descendants
The first class is made up of the children and grandchildren of the deceased and their descendants. Descendants form the circle of statutory heirs closest to the deceased; for this reason, where there are descendants, the second and third classes can take no share of the estate.
Equality of entitlement between the children is the governing principle. Where one of the children has died before the deceased, that child’s share passes to that child’s own descendants and the grandchildren, taking the position of their deceased mother or father, become heirs.
Where the spouse is also an heir, one quarter of the estate falls to the spouse; the remaining portion is divided equally between the children.
The Succession and Share of the Surviving Spouse
The surviving spouse holds a separate status within the Turkish Civil Code. Although not a blood relative, the spouse takes a share of the estate together with whichever class of the deceased inherits. This is also the reason why the share of the surviving spouse varies according to the class with which the spouse inherits.
The basis of the spouse’s succession is an official marriage alone. Engagement, a religious marriage ceremony or a relationship maintained without any official bond gives rise to no right of succession. Once a divorce decree becomes final, the relationship of statutory succession between the spouses likewise ceases to exist.
The shares accorded to the spouse by the statute operate as follows: if the deceased has descendants, the spouse becomes entitled to one quarter of the estate and the remaining portion is divided equally between the descendants. If there are no descendants, the spouse’s share increases; depending on the class with which the spouse inherits, the spouse may be entitled to one half, three quarters or the whole of the estate.
In practice the spouse’s participation claim and any claims relating to the family residence are also dealt with alongside the division. In particular, where the regime of participation in acquired property is in force between the spouses, the matrimonial property regime must be liquidated before the calculation of the shares of the estate is undertaken.
The Succession and Share of the Parents
If the deceased has no descendants, the parents participate in the estate in the capacity of second-class heirs. If both are alive, the division is made equally between them.
Where one of the parents has died before the deceased, that parent’s share passes to that parent’s own descendants. In this way siblings and their descendants may obtain a right of succession.
Where the spouse is also an heir, the spouse’s share is set aside first; the remaining portion is divided between the parents.
The Succession and Share of the Siblings
Siblings are situated within the second class as the descendants of the parents. Where the mother or the father of the deceased has died before him, the siblings may acquire the status of heir.
The share falling to the siblings is determined on the basis of the share of the deceased parent. Where one of the siblings has died before the deceased, that sibling’s share likewise passes to that sibling’s own descendants. Where, by contrast, the deceased has descendants, the question of the siblings’ succession does not arise.
The Succession and Share of the Grandparents
If there is no heir at all in the first two classes, the grandparents who make up the third class and their descendants become entitled to the estate.
Where one of the grandparents has died before the deceased, that person’s share passes to that person’s own descendants; in this way relatives such as uncles and aunts may also become heirs. Where the spouse inherits together with the third class, three quarters of the estate falls to the spouse.
There is, however, an important limitation at this point: where the third-class heirs have themselves also died before the deceased, their share does not pass to their descendants. In other words, the children of an uncle or an aunt are not regarded as statutory heirs where there is a surviving spouse. In such a case the whole of the estate passes to the surviving spouse.
The Succession and Share of the Adopted Child
The Turkish Civil Code situates the adopted child and that child’s descendants as first-class heirs. The adopted child has the same right of succession as a biological child of the adopter and is in an equal position as regards the share.
For this right to arise, the relationship of adoption must have been validly established at the moment of the deceased’s death. The relationship produces a one-way effect: the adopted child becomes an heir of the adopter, whereas the adopter and the adopter’s relatives cannot be statutory heirs of the adopted child.
The Statutory Succession of the State
Pursuant to Article 501 of the Turkish Civil Code, where neither a statutory nor an appointed heir remains, the estate passes to the State.
For this result to follow, it is required that there be no descendants, spouse, parents or their descendants, grandparents or their descendants, and no appointed heirs of the deceased.
The liability of the State differs from that of the other heirs: it is held liable for the debts of the estate only to the extent of the assets that have passed to it by way of succession.
Heirs Entitled to a Reserved Portion and the Applicable Rates
Our law of succession affords the deceased, as a rule, freedom of disposition over the assets. That freedom is not absolute. In order to secure a defined proportion of the entitlement of the closest heirs, the legislator has provided for the institution of the reserved portion.
By virtue of this institution the deceased cannot, by means of transactions such as a will, a contract of succession or a gift, wholly extinguish the succession rights of certain heirs. Heirs entitled to a reserved portion may preserve in all circumstances the proportion accorded to them by the statute.
The Concept of the Reserved Portion
The reserved portion is the share of the estate over which the deceased has no power of disposition and which the statute protects in favour of certain heirs. Put another way, it expresses the minimum right of succession that survives even against the will of the deceased.
The area within which the deceased may act freely is limited to the disposable portion of the estate alone. Dispositions that encroach upon the reserved portion may, where the conditions are met, form the subject of an action for abatement.
Those Who Benefit from the Protection of the Reserved Portion
Our statute accords the right to a reserved portion to the descendants, to the parents and to the surviving spouse. These persons hold a protected right in the proportions set out in the statute.
The position of siblings has changed; contrary to earlier provisions, siblings are today not regarded as heirs entitled to a reserved portion. The deceased may therefore restrict, and indeed wholly extinguish, the succession rights of siblings by means of dispositions upon death.
Determination of the Rates
The provision governing the rates of the reserved portion is contained in Article 506 of the Turkish Civil Code.
The calculation proceeds in two stages: first the statutory share of the heir concerned is established, and the rate laid down in the statute is then applied to that share.
Remedies Available Where the Reserved Portion Is Infringed
If the dispositions made by the deceased impair the reserved portion, more than one legal avenue is open to the heirs entitled to it.
The most frequently used of these is the action for abatement. The aim of an action for abatement is to reduce dispositions exceeding the reserved portion to the statutory limit and to make good the shortfall in the succession right.
Depending on the particular features of the case, an action for annulment of title deed and registration based on simulation by the deceased, an action for annulment of a contract of succession or an action for annulment of a will may also arise.
Establishing Statutory Succession
The status of heir is acquired automatically by operation of the statute upon death. For heirs to be able to carry out official transactions, however, that status and the shares must be established by a document. In practice the document known as the certificate of inheritance serves this function.
That document shows the identities of the heirs and the proportion of the share falling to each of them. Its production is required in land registry and banking transactions, in inheritance and transfer tax procedures and in a great many transactions relating to the estate.
The Nature of the Certificate of Inheritance
The certificate of inheritance is an official document showing the statutory heirs of the deceased and, where applicable, the appointed heirs; in practice it is also referred to as the certificate of heirship.
The document sets out separately who the heirs are and the share of each. The document is not constitutive of the status of heir; it has a declaratory function, setting out the existing position.
The certificate of inheritance remains valid until the contrary is proved. If it emerges that it has been drawn up incorrectly, its annulment or rectification may be sought.
How the Document Is Obtained
The certificate of inheritance may be obtained both from notaries and from the Civil Courts of Peace. In files containing a foreign element, however, where the civil registry records are insufficient, or where the position as to succession gives rise to doubt, a notary may be unable to act. In such cases an application must be made to the Civil Court of Peace.
It is not necessary for the request to be made jointly by all the heirs; a single heir may also apply. Each of the statutory heirs may go alone to a notary or to the Civil Court of Peace and request that the document be drawn up. In addition, appointed heirs, legatees and the creditors of the deceased or of an heir may also request that the document be issued.
In most cases an examination of the death record and the civil registry records is sufficient for the document to be drawn up. Following that examination the court or the notary determines the heirs and their shares and draws up the document.
Division of the Estate
Division is the process by which, following the death of the deceased, the estate is distributed among the heirs. That process is conducted within the framework of the dispositions upon death made by the deceased and the provisions of the Turkish Civil Code on statutory succession.
Where there is more than one heir, entitlement to the estate is held in common until the division is carried out. At this stage, dispositions over the assets forming part of the estate require the heirs to act jointly.
If no agreement can be reached as to how the division is to be made, each of the heirs may apply to the court and request that the estate be divided. In those proceedings the shares of the heirs, their rights to a reserved portion and the value of the assets forming part of the estate are considered together.
The Community of Heirs
Upon death a community of heirs arises between the heirs without any further transaction being required, and that community subsists until the division is completed.
For as long as the community subsists, the heirs are jointly entitled to the estate; transactions relating to the estate are as a rule carried out jointly.
Joint Ownership of the Estate
Throughout the community of heirs, the regime of joint ownership applies to the assets of the estate. Under this regime the heirs have no separate and independent shares.
As a consequence, the sale or transfer of, or any disposition over, immovable property belonging to the estate depends as a rule upon all of the heirs acting together.
Dividing Up the Estate
The division may be effected by agreement between the heirs or may equally rest upon a court decision. The heirs may draw up a division agreement between themselves and divide the estate themselves.
Where no agreement can be reached, each of the heirs may apply to the Civil Court of Peace for division. Depending on the features of the file, the court may order that the assets be divided in kind or that they be divided by way of sale.
Worked Examples of Share Calculation
The calculation of shares varies according to the class in which the heir is situated, whether or not the spouse is alive and whether the principle of representation comes into play. The examples below set out in outline the logic by which the statutory shares are determined.
First example. The deceased is survived by a spouse, one child, the daughter of an adopted child and a mother. Since there are descendants, the mother cannot be an heir in this configuration. If the spouse has a participation claim, the matrimonial property regime is liquidated first; the shares of the estate are calculated only thereafter, over the estate that remains.
Second example. The survivors are a spouse, a father and one sibling. Since the father is alive, the sibling cannot acquire the status of heir. As the spouse inherits together with the second class, the spouse is entitled to one half of the estate.
Third example. The deceased is survived by a spouse, two daughters, the three children of a son who predeceased him and an aunt. Under the principle of representation the grandchildren take the place of their father and become heirs. The aunt, being in the third class, can take no share of the estate given the existence of descendants.
Fourth example. The survivors are two daughters and the three children of a son who died earlier. In this configuration the grandchildren become jointly entitled, under the principle of representation, to the share that would have fallen to their father.
Independent Legal Assessment
Although statutory succession appears on paper to be a simple calculation of proportions, in practice there are a great many factors that complicate the picture. Whether or not the matrimonial property regime has been liquidated, transfers made by the deceased during his lifetime, the validity of an adoption relationship and gaps in the civil registry records are all elements capable of altering the outcome of the calculation directly.
In succession disputes, therefore, a sound road map begins with the complete identification of the circle of heirs and the scope of the estate. In a concrete file the following points in particular come to the fore:
- Drawing up the circle of heirs in full, on the basis of the civil registry records and according to the principle of classes
- Where the regime of participation in acquired property is in issue, completing the liquidation before the shares are calculated
- Examining whether dispositions made by the deceased during his lifetime impair the reserved portion
- Where an abatement claim is contemplated, calculating and documenting the time limits from the outset
- Checking the proportions of the shares stated in the certificate of inheritance and, if there is an error, pursuing rectification
- Avoiding any transaction carried out alone over the assets of the estate while joint ownership subsists
Independent Legal provides advisory services and conducts litigation at every stage of the law of succession, from obtaining the certificate of inheritance to pursuing actions for abatement and for division.