Succession Law: The Estate, the Status of Heir and the Basis of Division

When a person loses their life, the property left behind does not become ownerless; it passes to particular persons within the framework drawn by the law. Succession law is the branch of law governing to whom, in what proportion and by what procedure that transfer is to be made where a natural person dies or is declared absent. The transfer covers not only the assets of the deceased but also their liabilities. Being an heir is therefore not merely an acquisition but a legal position that also gives rise to liability.

A significant proportion of the disputes seen in practice is fed by the assumption that this transfer will operate automatically and without friction. In reality, documenting the status of heir, determining the extent of the estate, checking whether the reserved portions have been encroached upon, the validity of dispositions upon death and the termination of the co-ownership between the heirs are technical problem areas in their own right. Each of them brings into play different types of action, different time limits and different means of proof.

In this briefing note we examine in turn, beginning with the basic concepts of succession law, the statutory order of succession, the system of classes, the regime of the reserved portion, dispositions upon death and the means of annulling them, the institutions of disqualification from inheritance and renunciation, the procedures for dividing the estate, and the liability of the heirs for debts. At the end of the section we also address the questions most frequently raised in practice.

Basic Concepts of Succession Law

Inheritance

Inheritance denotes the sum constituted by all the assets and liabilities a deceased person leaves behind. The concept covers the values to be transferred to the surviving family members and the statutory heirs, and it also takes in the unpaid debts of the deceased. Put otherwise, the inheritance reflects the whole of the assets and liabilities of the deceased. It follows that the true size of an inheritance is found by deducting the debts from the total of the values in the estate.

The Deceased and the Testator

The concept of the testator, the counterpart of the Latin-derived word “testator”, is used to describe the person who draws up a will. A will is the legal document showing to whom and how a person’s assets are to be transferred after their death; the person who draws up that document bears the status of testator.

The general counterpart of the term in succession law is as follows: the deceased is the person whose rights and receivables pass, upon their death, to the persons designated by the law.

Heir

An heir is the person or persons who, upon the death of the deceased, are to take a share of their assets and debts pursuant to the statutory provisions or to a will. The body of property taken over by the heirs covers not only all the assets in the estate of the deceased but also the liabilities.

Statutory Heir

Statutory heirs are the rightholders who take over the assets by operation of law where the deceased has drawn up no will, or where the will drawn up is treated as invalid. This group is mostly made up of those closest to the deceased: their children, their adopted child, their spouse, their mother and father, their siblings and other relatives. The rules on statutory succession also determine the inheritance shares of these persons.

For the purposes of the Turkish Civil Code, the groups bearing the status of statutory heir are as follows:

• The surviving spouse — the spouse to whom the deceased was still married at the moment of death.
• The descendants — the children, grandchildren and later generations of the deceased; an adopted child is also within this circle.
• The adopted child — the persons with whom the deceased established a legal bond by way of adoption.
• The mother and father — the parents who brought the deceased into the world.
• The State — where no heir at all is left behind, or where all the heirs have renounced the inheritance, the estate passes to the State.

Appointed Heir

Appointed heirs are persons who, although they do not bear the status of heir by law, are brought into that position by the intention of the deceased. As a rule, the estate passes first to the statutory heirs. The deceased may nevertheless wish to leave part or all of their assets to persons outside the circle of statutory heirs, to charitable foundations or to other recipients of their own choosing. They express that preference by way of a will or a contract of inheritance; the persons brought into the inheritance by those instruments are referred to as appointed heirs and take a share of the division in accordance with the intention of the deceased.

The Estate

The estate may be defined as the whole of the elements of property left behind on a person’s death. Accordingly, all the values of an asset and liability character left behind by the deceased fall within the estate. The property and receivables of the deceased at the moment of death constitute the asset side of the estate, and their debts the liability side. In short, the estate corresponds to the inheritance as a whole.

The function of the estate is decisive in the process of division and distribution. The heirs may take the share falling to them once the determination and valuation of the estate have been completed. The estate is placed on record in the legal proceedings; that record and its administration ensure that the distribution is conducted equitably.

The Certificate of Inheritance and the Decree of Succession

The “certificate of inheritance”, which serves to prove the heirs’ status and is known in practice by the alternative name “decree of succession”, is governed by Article 598 of the Turkish Civil Code.

Turkish Civil Code Art. 598 – Certificate of inheritance
“Upon their application, a document showing their status as heirs shall be issued by the civil court of peace or by a notary to those who are established to be statutory heirs.”

This document is an official document within the meaning of Art. 7 of the Turkish Civil Code and creates a presumption that the status of heir exists. That is to say, it is accepted at the outset that the persons named in the document truly are heirs. It must nevertheless be borne in mind that the contrary of the matters stated in the document may always be proved, and that the document has effect only until the contrary is established.

The certificate of inheritance is drawn up following the death of the deceased and shows who is entitled and in what proportion. The document may be sought both from the judge of the civil court of peace and from a notary.

For the notarial route to be available, there must be no uncertainty in the civil registry records and the parentage must be capable of being established beyond doubt; the presence of such ambiguities may prevent a document being obtained from a notary. Annulment of the document may also be sought on the ground that the information it contains does not reflect the truth. No time limit is laid down for the application: it may be made at any time after the death has occurred and been entered in the civil registry records. The function of the document is critical for the determination of the inheritance shares and the ordering of the distribution.

Statutory Heirs

Succession of Blood Relatives

The model Turkish law has chosen for the succession of blood relatives is the system of classes. Under this model the relatives of the deceased are divided into particular classes, and the classes are in turn divided into degrees. Three classes are provided for blood relatives, and the share of each class differs from that of the others.

The content of the classes is as follows: the children who constitute the descendants of the deceased make up the first class; their mother and father, together with the descendants of the latter, the second class; and their grandmothers and grandfathers, together with the descendants of the latter, the third class. The inheritance share of each class is distinct from that of the others.

Succession of an Adopted Child

An adopted child and their descendants are treated as first-class heirs, notwithstanding the absence of any blood tie with the deceased. Those persons benefit to the same extent from the rights conferred on the descendants of the deceased.

Succession of the Surviving Spouse

Since the surviving spouse is not a blood relative of the deceased, they do not have the character of a class heir. The spouse nevertheless acquires the status of heir alongside the heirs of whichever class is in the position of heir.

The spouse’s share varies according to the class with which they take the inheritance:

• Where they take the inheritance together with the descendants, that is with the first class, one quarter of the estate falls to the spouse.
• Where they take the inheritance together with the second class, the share rises to one half of the estate.
• Where they take the inheritance together with the heads of the third class and their children, the proportion is three quarters of the estate.
• Where there is nobody in the first and second classes, and the heads of the third class and their children are likewise not living, the whole of the estate goes to the spouse.
• Where there is no heir in the first two classes and the heads of the third class and their children are likewise not living, the surviving spouse becomes entitled to the entirety of the estate.

Succession of the State

Under Art. 501 of the Turkish Civil Code, the estate of a person who dies leaving no heir behind passes to the State. Succession by the State means that the State is treated as the rightholder where the deceased has no statutory heirs, or where there is no power to determine the destination of their inheritance.

The System of Classes

A class — otherwise called a degree — denotes the groups into which the heirs are divided on a basis of priority in accordance with the statutory provisions. The persons in these groups exercise the right of inheritance in order of priority.

The order of classes in the Turkish Civil Code is the basic mechanism resorted to in determining succession. To be treated as a class heir, a tie of blood relationship with the deceased is required. The law has placed the close relatives of the deceased in particular classes and has provided that these persons are to exercise the right of inheritance in order of priority.

The working of the system is simple: each class constitutes a level of priority, and for so long as there is an heir in the preceding class, those in the following class cannot benefit from the right of inheritance. The purpose of the arrangement is that the division should be conducted equitably and that succession should be determined in accordance with the law.

The Turkish Civil Code recognises three classes of heir.

First-class (first-degree) heirs. At this level are the descendants of the deceased. Children, grandchildren and the generations following them are heirs without any limit. The shares of the children are equal; the place of a child who died before the deceased is taken by that child’s own descendants under the principle of representation at every degree. The inheritance is thus distributed in a balanced way within the descending line.

Second-class (second-degree) heirs. This level is constituted by the mother and father of the deceased; both are in an equal position as regards succession. The place of a mother or father who died before the deceased is taken by their descendants by way of representation at every degree. Accordingly, where the parents are not living, the status of heir passes by way of representation to the siblings and to the descendants of the siblings.

Third-class (third-degree) heirs. At this level are the grandmother and grandfather of the deceased. Where the descendants in the first class (children, grandchildren and the like) and the mother and father in the second class die without leaving descendants, succession passes to the grandmother and grandfather. That is to say, where the heirs of a nearer degree and their descendants do not exist, the right of inheritance is exercised by the third-degree heirs.

The place of a grandmother and grandfather who died before the deceased is likewise taken by their own descendants by way of representation at every degree. In that event the status of heir passes to the paternal uncles and aunts and the maternal uncles and aunts of the deceased and to their descendants. In this way the other heirs on the same side, namely the siblings and their descendants, take the position of the grandmother and grandfather.

The Reserved Portion and Heirs Entitled to It

The reserved portion is the share which is secured by the law and, being regarded as belonging absolutely to the statutory heirs, cannot be altered by the intention of the deceased. By this arrangement the legislature has sought to protect the statutory heirs and their inheritance rights to a certain extent.

The concept becomes important in particular where the deceased has made a disposition upon death — for example, has drawn up a will. By the will they draw up, the deceased may leave part or all of their estate to particular persons or institutions without regard to the reserved portions. Since the basic principles of succession law take respect for the intention of the deceased as their starting point, such dispositions are treated as valid until they are set aside by an action for abatement.

It is open to the heirs entitled to a reserved portion to object to that disposition and to secure the protection of their reserved portion; the route to be taken is the action for abatement. That action serves to review the lawfulness of dispositions upon death effected by will and to secure the reserved portions.

By the amendment made to the Turkish Civil Code in 2007, siblings ceased to be heirs entitled to a reserved portion. The reserved portions in force are as follows:

• For the surviving spouse, the whole of the statutory inheritance share where they take the inheritance together with the descendants or with the class of the mother and father; in other cases, three quarters of the statutory inheritance share,
• For the descendants, one half of the statutory inheritance share,
• For each of the mother and father, one quarter of the statutory inheritance share.

Dispositions upon Death

Turkish Civil Code No. 4721 allows persons, provided they remain within certain limits, to regulate the future of their assets for the period after their death. Transactions of this character, which take effect after death, are called dispositions upon death. Such dispositions fall essentially under two headings, the will and the contract of inheritance. Whereas the contract of inheritance is a bilateral transaction, the will is unilateral. Just as the will is created by a unilateral intention, so it may be withdrawn by a unilateral intention; withdrawal does not require the consent of the person in whose favour the disposition was made.

By means of these institutions the deceased may shape the destination of their assets according to their own preference and gains freedom of action as to how the division is to be carried out.

The Will

A will is the written or oral declaration in which the deceased sets out their last wishes, which they wish to be carried out after their death, and the manner in which their estate is to be divided.

The law provides for three types of will: the official will, the holograph will and the oral will. Distinctly strict rules of form are laid down for all three types, and wills drawn up without compliance with those rules are treated as defective. The same result follows where a will is drawn up although there is no capacity to make one. A defect does not, however, render the will void of itself; for a defective will to be deprived of effect, an action for the annulment of the will must be brought. That action seeks the setting aside of the disposition and the division of the estate in accordance with the statutory provisions.

The will stands at the centre of succession law as the legally recognised form of expression of the intention of the deceased. A will prepared in accordance with the statutory provisions and the rules of form both protects the rights of the heirs and contributes to a balanced division. Defective wills, by contrast, can be deprived of effect only by judicial means. The reliability of the succession law system also rests on this mechanism of review.

The Contract of Inheritance

A contract of inheritance denotes an agreement concluded by the deceased with other persons during their lifetime which produces effects upon death. By this route the deceased seeks to determine here and now how their assets are to be distributed after their death and how the estate is to be divided. The contract takes effect after death; it affords the opportunity to plan, in accordance with the deceased’s own intention, who the heirs will be and on what basis the distribution is to be made.

Being a bilateral legal transaction, the contract of inheritance embodies the consent both of the deceased and of the other party. That agreement between the parties allows the deceased to regulate the future distribution of their assets while still alive. The deceased thereby sets out their preferences as to the division of the estate and makes a particular declaration of intention directed to their heirs.

The arrangement created by a contract of inheritance differs in character from that made by way of a will. Whereas a will, being a unilateral declaration of intention, reflects only the wish of the deceased, a contract of inheritance has the character of a mutual agreement between the parties.

As a rule, it is not possible to withdraw unilaterally from a contract of inheritance; the contract may be brought to an end only by agreement of the parties. Where, however, the consideration has not been performed or the deceased has acted contrary to the contract, unilateral withdrawal of the intention becomes possible.

Dispositions upon death may in certain cases become void of themselves by operation of law, and may equally be set aside by judicial decision where grounds of annulment exist.

The cases in which a disposition is treated as void of itself are as follows:

• Where the person in whose favour the disposition was made loses their life before the deceased,
• Where the person in whose favour the disposition was made is disqualified from inheriting,
• Where the marital union comes to an end for a reason other than death,
• Where, the disposition having been made subject to a condition, the resolutive or suspensive condition occurs.

The occurrence of any one of these cases has the effect of rendering the disposition upon death void of itself.

The Contract of Maintenance until Death

A contract of maintenance until death is the contract by which a maintenance creditor in need of care and supervision by reason of old age or illness undertakes to transfer certain assets to a maintenance debtor, and the maintenance debtor undertakes the obligation of caring for the creditor, supervising them and meeting their needs until the end of their life. The purpose of the institution is that the needs of persons in a position of dependence should be met to the extent that equity requires.

Article 612 of the Turkish Code of Obligations requires such contracts to be created in the form of a “contract of inheritance”. That requirement is a condition of validity; contracts of maintenance until death not made in the form of a contract of inheritance are not treated as valid. The contractual relationship may come to an end for reasons such as withdrawal from the contract, the death of the maintenance debtor, bankruptcy or the agreement of the parties.

For a detailed account of the subject, reference may be made to our note entitled “Contract of Maintenance until Death”.

Annulment of Dispositions upon Death

The annulment of a disposition upon death is the treating as invalid, or the setting aside, on particular grounds, of transactions made by the deceased during their lifetime which are to take effect after their death. Following the death of the deceased, the annulment of such dispositions may be sought by the heirs or by other interested persons by application to the court.

For an application for annulment to be entertained, one of the grounds set out in the law must be present. The cases in which an action may be brought fall under the following headings:

• Non-compliance with the rules of form: Where the disposition was made without compliance with the statutory provisions and the prescribed requirement of form, or is irreconcilable with the reserved portions of the heirs, its annulment may be sought.
• Absence of capacity: Where it is shown that the deceased lacked legal capacity at the moment they effected the disposition, the disposition may be annulled.
• Defect in intention: Where it is proved that the deceased was deceived, was given incorrect information or was under duress when making the disposition, annulment may be sought.
• Contravention of law and morality: Where the content of the disposition is contrary to the social order, to morality or to public policy, a ground of annulment arises.

Annulment of a Will

Heirs who suffer a loss of rights by reason of the provisions of a will may, where the conditions for annulment are satisfied, bring an action for the annulment of the will. A will is the document in which persons declare among whom and in what measure they wish their assets to be divided after their death. The principal purpose in drawing up the document is to alter the inheritance shares provided for by the Civil Code in accordance with the intention of the deceased. A judgment annulling a will takes effect only as regards those who sought the annulment; as regards those who did not, the provisions of the will remain in force.

Action for Annulment Based on Simulation by the Deceased

Simulation by the deceased describes the situation in which the deceased seeks to mislead their heirs and thereby conceal assets from them. It covers the case where, although the deceased’s true intention is to make a gift of their immovable property to one of their heirs or to a third party, they conceal that intention to make a gift under the appearance of a sale or of a contract of maintenance until death, with the aim of preventing the heirs from later claiming their shares in that immovable property.

Simulation by the deceased is, by definition, expressed as the concealment of assets by the deceased by way of deceiving their heirs. By presenting the elements of property they in truth wish to give away as having been transferred in return for a purchase price or for a service of care, the deceased narrows the estate. In such cases all the heirs whose inheritance rights are encroached upon may bring an action seeking a declaration that the simulated disposition is invalid and the annulment of the transactions founded upon it.

The Action for Abatement

Abatement is a legal term used in the sense of “mitigation” or “reduction”. An action for abatement is an action seeking to remove or diminish the effect of certain provisions contained in the deceased’s will or in agreements made with the other heirs, on the ground that those provisions are invalid or void. The function of the institution is to deprive of effect the dispositions upon death made by the deceased during their lifetime — whether a will or a contract of inheritance — to the extent that they infringe the reserved portions of the heirs entitled to them.

The action serves only to protect the reserved portion of the heir who brings it; the shares of the other heirs are unaffected by it. In other words, each heir entitled to a reserved portion may seek abatement separately in order to protect their own share, and no change occurs in the legal position of those who are not parties to the action.

The right to seek abatement lapses one year after the date on which the heirs learned that their reserved portions had been encroached upon and, in any event, on the expiry of ten years from the date of opening in the case of wills and from the date on which the succession opened in the case of other dispositions. These periods determine the window for applying to set aside dispositions upon death by way of abatement after the death of the deceased.

Grounds of Disqualification from Inheritance

Waiver of Inheritance

Waiver of inheritance is the giving up by an heir, of their own volition, of their statutory inheritance rights by a contract concluded with the deceased. The rules governing the institution are contained in Article 528 of our Civil Code.

Turkish Civil Code Art. 528
“The deceased may conclude a contract of waiver of inheritance with one of their heirs, with or without consideration. The person waiving loses the status of heir. Waiver of inheritance for consideration also takes effect in respect of the descendants of the person waiving, unless the contract provides otherwise.”

By means of a contract of waiver, the basis on which the assets are to be divided among the heirs after the death of the deceased may be shaped in advance. One of the heirs may give up their inheritance rights by way of waiver, and that transaction may be made either with or without consideration.

• Waiver for consideration: Where the heir obtains a price or benefit in return for giving up their rights, the descendants of the person waiving likewise lose the status of heir. That is to say, in a waiver made for consideration the descendants of the person giving up their rights are no longer treated as heirs.
• Waiver without consideration: Where the heir has given up their inheritance rights without seeking any price or consideration, the descendants of the person waiving continue to be heirs of the deceased. For example, as regards children who waive without consideration their inheritance from their father or grandfather, the descendants of those persons retain the position of heir.

Disinheritance

The law confers on the deceased, where certain conditions are present, the power to disinherit an heir entitled to a reserved portion. Where one of the following cases occurs, the heir may be disinherited by a disposition upon death:

• Where the heir has committed a serious offence against the deceased or against one of their close relatives,
• Where the heir has substantially breached the obligations arising from family law towards the deceased or the members of their family.

These cases are assessed after the death of the deceased, during the distribution of the estate, and if the conditions are found to be satisfied the heir concerned is left out of the succession. The arrangement is an important mechanism ensuring that the division is carried out fairly and that the rights of the deceased are protected. The validity of such a disposition nevertheless depends on the conditions required by the law having been satisfied in the prescribed manner.

Disinheritance is effected by way of a will. For the disinheritance to take effect, its ground must be expressly stated in the will; it is not permissible to make do with statements of a general character. Where no ground has been stated at all, or the ground stated is not considered sufficient, the heir entitled to a reserved portion may obtain their reserved portion by bringing an action for abatement.

Since disinheritance is effected by a will, recourse may also be had to an action for annulment where the conditions for such an action exist. Moreover, a fundamental mistake on the part of the deceased as to the grounds of disinheritance may also form the basis of an action for annulment.

A disinherited person can neither take an inheritance share nor bring an action for abatement. Unless the deceased has made a separate disposition in respect of the disinherited person’s share, that share passes to the heirs who take their place.

Renunciation of the Inheritance

“Renunciation of the inheritance”, commonly known in practice as “disclaimer of inheritance”, is a right affording the heir the opportunity to escape financial and legal liability. Declining to accept the inheritance after the death of the deceased is a legal transaction left to the heir’s choice. An heir who renounces is treated as having given up their rights over the inheritance and does not take part in the division. They are thereby also freed from the debts and obligations the inheritance brings with it.

Renunciation may be effected by the heir’s own volition; equally, where it is clearly apparent that the deceased was insolvent as regards their debts, the inheritance is treated as renounced by operation of law even in the absence of any such request by the heir.

Statutory and appointed heirs must complete the renunciation by making a written or oral declaration to the civil court of peace within three months of the date on which they learned that they were heirs. That three-month period is a preclusive period; if the right of renunciation is not exercised within the period, the inheritance is treated as having been accepted unconditionally.

Division of the Inheritance

Joint Ownership

Joint ownership is the ownership of an item of property by a community collectively, pursuant to the law or to private-law contracts. This form of ownership may be created only in a limited number of cases and typically arises in particular situations such as a community of heirs. In immovable property subject to joint ownership, each of the owners is treated as an owner in common over the whole of the property and is regarded as having equal rights and powers.

Where a disagreement arises between the owners, or where one of them wishes to sell or transfer the property, the consent of the others may be required. Moreover, since each owner bears equal rights and responsibilities over the whole of the property, they must reach agreement with the other owners and act in cooperation with them as regards the use and enjoyment of the property and dispositions over it.

Co-Ownership in Shares

Co-ownership in shares is defined in Article 688 of the Turkish Civil Code.

Turkish Civil Code Art. 688
“In co-ownership in shares, several persons own the whole of a thing that is not physically divided, in specified shares. Unless determined otherwise, the shares are deemed equal. Each of the co-owners has the rights and obligations of an owner in respect of their own share. A share may be transferred, pledged and attached by creditors.”

The Partition Agreement

A partition agreement is a written contract containing the arrangements as to how the heirs are to divide the estate among themselves. Recourse is had to this instrument where a dispute arises between the heirs as to the division and liquidation following the death of the deceased, or where particular arrangements are to be made.

When the agreement is being prepared, consensus is reached on all the elements of the inheritance, including all the items in the estate, movable and immovable alike. The text sets out the shares of the heirs and the details of the procedure by which the division is to be effected. The heirs thereby carry out the partition both in accordance with the statutory provisions and on the basis agreed among themselves.

Under Article 676 of the Turkish Civil Code, a partition agreement must be made in writing with the participation of all the statutory and appointed heirs. The provision treats the written form as sufficient and does not impose any requirement that the contract be drawn up in official form, that is before a notary. What is required for validity is that all the heirs decide unanimously how the estate is to be divided.

Dissolution of Co-Ownership

Several persons may become owners of the same item of property together, principally by way of inheritance but also as a result of a particular act or transaction. It is possible for more than one person to be entitled over an item of property by reason of a particular act or transaction. Where no agreement can be reached on division, one of the co-owners may bring an action seeking the dissolution of the co-ownership. This action is known in practice as an action for izale-i şüyu or an action for the dissolution of co-ownership.

An action for the dissolution of co-ownership is a special type of action which brings to an end the relationship of common ownership between the co-owners in movable or immovable property subject to co-ownership in shares or to joint ownership, and which secures the conversion of the property into individual ownership or its sale and the distribution of the proceeds according to the shares. By this route the common property may be divided at the request of any one of the co-owners, irrespective of whether the ownership is in shares or joint. Where division in kind is not in fact possible, the co-ownership is terminated by way of sale.

Since no limitation period is provided for this action, it may be brought at any time and the dissolution of the co-ownership may be sought. By means of the action the ownership relationship between the co-owners is liquidated equitably and each co-owner is enabled to take the part of the property corresponding to their share.

Liability of the Heirs for Rights, Claims and Debts

Article 599 and the following articles of the Turkish Civil Code regulate in detail the rights and obligations of the heirs upon acquisition of the inheritance.

Turkish Civil Code Art. 599
“The heirs acquire the inheritance as a whole, by operation of law, upon the death of the deceased. Subject to the exceptional cases provided for by law, the heirs acquire directly the rights in rem, the claims, the other property rights and the possession of movable and immovable property of the deceased, and are personally liable for the debts of the deceased. Appointed heirs likewise acquire the inheritance upon the death of the deceased. Statutory heirs are obliged to deliver to the appointed heirs the inheritance falling to them in accordance with the provisions on possession.”

In the field of succession, Turkish law has taken the principle of “universal succession” as its basis. Under that principle, upon a person’s death the whole of the deceased’s assets — their rights and claims — together with their obligations, that is their debts, pass to the statutory or appointed heirs.

Accordingly, upon death the entirety of the estate passes to the heirs by operation of law; the heirs become the addressees of the deceased’s debts as much as of their rights and claims. While the whole of the assets at the moment of death becomes theirs, the burden of debt passes to them at the same moment.

The scheme of universal succession preserves the integrity of the estate and prevents its fragmentation. The transfer of the inheritance as a whole makes it possible for its administration and division to be conducted more effectively and in a more balanced way. Since, however, the heirs are also held liable for the debts, the obligations the inheritance brings must be taken into account as much as the benefits it confers.

Personal Liability of the Heirs

Article 599(2) of the Turkish Civil Code establishes that, within the scope of the principle of universal succession, the heirs take on all the debts of the deceased and are liable towards all the creditors.

Turkish Civil Code Art. 599(2)
“Subject to the exceptional cases provided for by law, the heirs acquire directly the rights in rem, the claims, the other property rights and the possession of movable and immovable property of the deceased, and are personally liable for the debts of the deceased.”

Under the provision, the liability of the heirs is not limited to the property of the estate; they are held personally liable for the debts of the deceased with the whole of their own assets.

Joint and Several Liability of the Heirs

Article 641 of the Turkish Civil Code lays down that, as regards the debts of the estate, the heirs are liable jointly and severally, that is together.

Turkish Civil Code Art. 641 – Liability of the heirs
“The heirs are liable jointly and severally for the debts of the estate……”

Under the principle of joint and several liability, the heirs are liable together for the whole of the debt towards the creditors of the deceased. In order to recover their claim, a creditor may apply to only one of the heirs, or may equally proceed against several of them or against all of them at once. By virtue of this arrangement the creditor may demand the whole of the debt from whichever heir they choose, and the heir so approached remains liable for the debt together with the others. Creditors may therefore claim the entirety of the debt from more than one heir.

Liability for Estate Debts after the Division

Under Article 681(1) of the Turkish Civil Code, the heirs continue to be liable for the debts of the estate with all their assets and jointly and severally even after the estate has been divided.

Turkish Civil Code Art. 681(1)
“The heirs are liable jointly and severally with all their assets, even after the division, for the debts of the estate to whose division or transfer the creditor has not expressly or impliedly consented…….”

The second paragraph of the article limits that liability as to time. Under Art. 681(2) of the Turkish Civil Code, joint and several liability comes to an end on the expiry of five (5) years from the division of the estate or from the debt falling due.

Turkish Civil Code Art. 681(2)
“……Joint and several liability comes to an end on the expiry of five years from the date on which the division took place or, for debts to be performed later, from the date on which they fall due.”

Accordingly, the period during which the heirs are to be held fully liable for the debts of the estate is limited to five years. The period begins to run from the moment at which the division was made or the debt fell due. Upon the expiry of the five years the heirs are freed from joint and several liability.

The Role of the Succession Lawyer

A succession lawyer, or lawyer practising in succession law, is a lawyer specialised in this field who, besides ensuring that a person’s assets are distributed effectively and lawfully following their death, undertakes the protection of the rights of the heirs and of the other interested parties.

Succession law is a field governing how a person’s assets are to be administered and divided after their death. Lawyers practising in this field undertake, with an approach that has regard to the rights of the heirs and of the parties concerned, the task of ensuring that the assets are distributed within the statutory framework and efficiently after death. Throughout the process they pursue the interests of the rightholders at every stage, from the determination of the estate to the completion of the division.

Frequently Asked Questions on Succession Law

What does succession law govern?

It is the branch of law determining to whom, and by what procedure, a natural person’s assets are to pass upon their death or a declaration of their absence.

How many kinds of heir are there?

Heirs are divided into two main groups, statutory and appointed.

What does the estate mean?

The whole of the elements of property which are not strictly personal and which are capable of passing to the heirs is termed the estate.

Who is an appointed heir?

They are persons who, although not treated by law as heirs of the deceased, obtain inheritance rights by the deceased’s intention.

How does the system of classes work?

The Turkish Civil Code has adopted the system of classes (degrees); to be a statutory heir, one must belong to a class. The presence of an heir in the preceding class bars the succession of the following class. On the same logic, the head of a class and the head of a line also bar the succession of the descendants.

Who are the first-degree heirs?

The descendants of the deceased are in the position of first-degree heirs. Children, grandchildren and the following generations are heirs without limit; the shares among the children are equal. The place of a child who died before the deceased is filled by that child’s own descendants by way of representation at every degree.

Who are the second-degree heirs?

In the second degree are the mother and father of the deceased; both are heirs in equal proportion. The place of a mother or father who died before the deceased is taken by their own descendants by way of representation at every degree. Accordingly, where the parents are not living, succession passes by way of representation to the siblings and to their descendants.

Who are the third-degree heirs?

In the third degree are the grandmother and grandfather of the deceased. Where the descendants and the mother and father die before the deceased without leaving descendants behind them, the status of heir passes to the grandmother and grandfather.

Whom does an adopted child inherit from?

An adopted child and their descendants inherit only from the adopter, in the same way as a blood relative. For example, an inheritance left by the adopter’s father does not pass to the adopted child. The adopter and their relatives, by contrast, cannot inherit from the adopted child; the adopted child’s succession within their own family continues.

How is the surviving spouse’s inheritance share determined?

The spouse’s share differs according to the class with which they take the inheritance:

• Where they take the inheritance together with the descendants of the deceased, one quarter of the inheritance,
• Where they take the inheritance together with the class of the mother and father, one half of the inheritance,
• Where they take the inheritance together with the grandmothers and grandfathers and their children, three quarters of the inheritance,
• Where none of these exists, the whole of the inheritance goes to the spouse.

In addition, the regime of participation in acquired property has been adopted in Turkish law as the statutory matrimonial property regime in marriage; each spouse, or their heirs, is entitled to one half of the surplus value belonging to the other spouse. Moreover, in order to be able to maintain their previous way of life, the surviving spouse may request that a usufruct or a right of habitation be granted to them over the dwelling belonging to the deceased spouse in which they lived together, to be set off against their participation claim — and, if that is not sufficient, with a payment added. Different arrangements adopted by a matrimonial property agreement are reserved.

Do divorce and separation affect succession?

Upon a divorce judgment becoming final, a spouse loses the status of statutory heir. Divorced spouses cannot inherit from one another in that capacity and, unless the disposition indicates otherwise, they also lose the rights conferred on them by dispositions upon death made before the divorce. A judgment of separation, by contrast, does not affect succession.

What happens to the inheritance of a person who dies leaving no heir?

The estate of a person who dies leaving no heir behind passes to the State. Since succession is confined to the third degree, where the deceased has no heir up to the third degree and no descendants, the inheritance passes to the State.

What is the reserved portion and what are its proportions?

As a rule, the deceased may dispose of their assets as they wish. The law nevertheless protects part of the inheritance share of the descendants, the mother, the father and the spouse. An heir whose reserved portion is infringed may claim their share by bringing an action for abatement. By the amendment made in 2007, the reserved portion of siblings was repealed.

The proportions of the reserved portion are as follows:

• For the descendants, one half (½) of the statutory inheritance share,
• For each of the mother and father, one quarter (¼) of the statutory inheritance share,
• For the surviving spouse, where they take the inheritance together with the descendants or with the class of the mother and father, the whole of the statutory inheritance share,
• In other cases, three quarters (¾) of the statutory inheritance share.

What does abatement mean?

Abatement is the depriving of effect of the dispositions upon death made by the deceased during their lifetime, to the extent that they infringe the reserved portions of the heirs entitled to them. As a rule it is effected by way of an action, and the action may be brought only by heirs entitled to a reserved portion. In the proceedings, abatement is carried out only as regards the share of the heir entitled to a reserved portion who brought the action. The action is directed against the heirs and third parties on whom the deceased conferred benefits in excess of their disposable portion.

What is a disposition upon death?

The deceased may not wish their assets to be divided after their death according to the rules in the law. If they are to make such a choice, they must determine during their lifetime the basis of division to apply to their inheritance. These instructions given by the deceased in contemplation of their death are called dispositions upon death. The Civil Code requires such dispositions to be made in particular forms; otherwise the wishes of the deceased cannot be carried out, or may be annulled at the instance of the heirs.

In what forms is a disposition upon death made?

Two options are open to the deceased: the contract of inheritance and the will.

Who may make a will, and in what form?

Anyone who has completed fifteen years of age and has the capacity of discernment may draw up a will. For the will to be treated as valid and to take effect, however, one of the forms provided for by the law must be complied with. There are three types: the official will, the holograph will and, in exceptional cases, the oral will.

How is an official will drawn up?

A will made before a notary, a judge of the civil court of peace or an official, with the participation of two witnesses, is termed an official will.

What are the requirements of a holograph will?

It is not compulsory for a will to be drawn up in official form. If the testator wishes, they may also write a will in their own hand, provided they comply with the requirements of form in the law. In a holograph will it is compulsory that the year, month and day on which it was drawn up be stated, and that the text be written from beginning to end in the deceased’s own hand and signed. Failure to comply with these conditions renders the will invalid.

Is it possible to withdraw a will?

A will, being a unilateral disposition upon death, may always be withdrawn. The deceased may at any time withdraw their earlier will by drawing up a new will in compliance with one of the forms provided for by the law. Withdrawal may also be effected by destroying the will.

A will that is destroyed by accident or through the fault of a third party and whose content cannot be established exactly and in full becomes void; the right to claim damages is reserved. Where the deceased makes a new will without setting aside their earlier one, the later will replaces the earlier unless it beyond doubt supplements it. A legacy of a specific item likewise lapses, unless the will provides otherwise, where the deceased subsequently makes another disposition over that item which is irreconcilable with the legacy.

How does a contract of inheritance differ from a will?

A contract of inheritance is, unlike a will, a disposition upon death that may be created only in official form and by mutual agreement. Waiver of inheritance, for example, may be effected only by a contract of inheritance. As a rule, there can be no unilateral withdrawal from this contract; the parties may bring the contract to an end by agreement. Where grounds of disinheritance exist, where the consideration has not been performed, or where the deceased has acted contrary to the contract, withdrawal by unilateral intention is possible.

In what cases do dispositions upon death become void of themselves?

Dispositions upon death become void of themselves by operation of law in some situations, and in others may be annulled where grounds of annulment exist. The cases giving rise to voidness of themselves are: the ending of the marital union otherwise than by death, the death of the person in whose favour the disposition was made before the deceased, the disqualification from inheriting of the person in whose favour the disposition was made, and, in conditional cases, the occurrence of the resolutive or suspensive condition.

On what grounds may a disposition upon death be annulled?

An action for annulment may be brought where the following grounds are present:

• That the disposition was made at a time when the deceased lacked capacity to dispose,
• That the disposition was made under the influence of mistake, deceit, threat or coercion,
• That the content of the disposition, the conditions to which it is subject or the charges attached to it are contrary to law or morality,
• That the disposition was made without compliance with the forms provided for by the law.

Who may bring an action for annulment, and within what period?

The action may be brought by an heir or a legatee who has an interest in the annulment of the disposition, and may be directed against the whole or part of the disposition. The action for annulment must be brought within the periods laid down in the law: the right of action lapses one year from the date on which the claimant learned of the disposition, of the ground of annulment and of their own entitlement and, in any event, on the expiry of ten years as against respondents acting in good faith, and twenty years as against respondents not acting in good faith, from the date of opening in the case of wills and from the date on which the inheritance passed in the case of other dispositions. Voidness may, by contrast, always be raised by way of defence.

When and how does the inheritance pass to the heirs?

The inheritance passes to the heirs of itself at the moment of the deceased’s death. The heirs and the estate are determined by reference to the moment of death; knowing the moment of death is therefore important for identifying the heirs. For example, where a married couple lose their lives ten minutes apart in the same road accident, the inheritance passes first to the spouse who died later and then to that spouse’s heirs.

Subject to the exceptional cases provided for by law, the heirs acquire directly the rights in rem, the claims, the other property rights and the possession of movable and immovable property of the deceased, and are personally liable for their debts. Appointed heirs likewise acquire the inheritance at the moment of death; statutory heirs are obliged to deliver to the appointed heirs the inheritance falling to them in accordance with the provisions on possession.

Where does the succession open?

The succession opens, in respect of the whole of the assets, at the place of domicile of the deceased. Actions for the annulment or abatement of the deceased’s dispositions, for the division of the inheritance and for recovery on the ground of succession are likewise heard by the court of that place of domicile.

What are the conditions for being an heir?

To be treated as an heir, a person must be alive, have legal capacity to hold rights and not be disqualified from inheriting. An unborn child may be an heir only on condition of being born alive; a stillborn child does not acquire the status of heir. The presence of an unborn child among the heirs is therefore a reason requiring the division to be held over.

What is disqualification from inheritance?

Disqualification from inheritance is a person’s inability to be entitled, as an heir or a legatee, in the estate of the deceased. The grounds of disqualification are set out exhaustively in the law; disqualification can therefore be spoken of only where those cases are present. Disqualification affects only the person disqualified. The descendants of a person disqualified from inheriting inherit in the same way as the descendants of a person who died before the deceased.

Which persons are treated as disqualified from inheriting?

The following persons can neither be heirs nor obtain any right by a disposition upon death:

• Those who intentionally and unlawfully kill or attempt to kill the deceased,
• Those who intentionally and unlawfully place the deceased permanently in a condition in which they are unable to make a disposition upon death,
• Those who, by deceit, coercion or threat, procure or prevent the deceased’s making of a disposition upon death or withdrawal from such a disposition,
• Those who intentionally and unlawfully destroy or spoil the deceased’s disposition upon death in circumstances and at a time in which the deceased cannot draw it up again.

Disqualification takes effect of itself; where these cases are present, the person cannot acquire the status of heir or legatee. Disqualification is removed by the deceased’s forgiveness.

In what cases is disinheritance possible?

The law affords the deceased the opportunity, where certain conditions are satisfied, to remove from the inheritance an heir entitled to a reserved portion. The deceased may disinherit an heir entitled to a reserved portion, by a disposition upon death, in the following cases:

• Where the heir commits a serious offence against the deceased or against one of their close relatives,
• Where the heir substantially fails to perform the obligations arising from family law towards the deceased or the members of their family.

Disinheritance is effected by way of a will and its validity depends on the grounds of disinheritance being stated in the will; it is not permissible to make do with general statements. Where no ground has been stated, or the ground stated is found to be insufficient, the heir entitled to a reserved portion may obtain their reserved portion by bringing an action for abatement.

What should be done when a will is found?

A will that comes to light after the death of the deceased must be delivered immediately to the judge of the civil court of peace, irrespective of whether it is valid. The official who drew up or is holding the will, the person keeping it at the deceased’s request, the person who obtains it in some other way, or the person who finds it among the deceased’s belongings, must perform the obligation of delivery as soon as they learn of the death; otherwise they are liable for the loss arising.

How is a will opened?

The judge of the civil court of peace examines a will delivered to them immediately, takes the necessary protective measures and, where possible, after hearing the interested parties, orders the provisional delivery of the estate to the statutory heirs or its official administration. The will delivered to the court is read to the heirs who are present; the will is opened by that step. The periods for bringing actions for annulment and abatement, and the period for renouncing the inheritance, begin to run from that date.

Where is the decree of succession obtained?

Statutory heirs, appointed heirs and legatees may request the official document showing their status as heirs from the civil court of peace where the succession opened or from notaries. This document is called the decree of succession or the certificate of inheritance and retains its validity until the contrary is proved.

How and within what period is the inheritance renounced?

An heir who does not wish to accept the inheritance may exercise the right of renunciation. The declaration of renunciation is made to the civil court of peace at the last place of domicile of the deceased. The period for renunciation is three months; for statutory heirs it runs from the moment they learned of the death and of their own status as heir, and for an heir appointed by will from the notification of the disposition to them. An heir who does not renounce the inheritance within the period is treated as having accepted it unconditionally. Where the deceased’s insolvency was clearly apparent or had been officially established at the date of their death, the inheritance is treated as renounced.

What is a community of heirs and how does it work?

Where the deceased has more than one heir, the community those persons constitute is called a community of heirs. Until the inheritance is fully divided, the heirs are entitled over the estate jointly.

Heirs holding property in joint ownership must carry out every transaction over the inheritance together. The heirs may seek division at any time; each of them may request the civil court of peace to order the division of particular items of property in the estate in kind or, where that is not possible, by way of sale. At the request of one of the heirs, the judge carries out the division having regard to the estate as a whole and to each of the items of property within it, so far as possible allocating the whole of each immovable to a single heir. Any difference between the values of the immovable property allocated to the heirs is made good by a payment of money, and equalisation between the shares is thereby achieved. Where an immediate division would substantially reduce the value of the property or of the estate, the judge of the civil court of peace may, at the request of one of the heirs, order that the division be postponed.

May a representative be appointed to the community of heirs?

At the request of one of the heirs, the civil court of peace may appoint a representative to the community of heirs until the division takes place.

How are the rights in the estate protected?

Each of the heirs may seek the protection of the rights in the estate, and all the heirs benefit from the protection afforded. Where one of the heirs is insolvent, the other heirs may, upon the opening of the succession, request the civil court of peace to take without delay the measures necessary for the protection of their rights. An action concerning the estate must be directed against all the heirs.

How are the heirs liable for the debts of the estate?

The heirs are liable jointly and severally for the debts of the estate. The creditors of the deceased may apply to whichever heir they choose and claim the whole of the debt; in that case the heir who pays the debt has a right of recourse against the others.

The heirs remain liable jointly and severally with all their assets, even after the division, for debts of the estate to whose division or transfer the creditor has not expressly or impliedly consented. Joint and several liability comes to an end on the expiry of five years from the date on which the division took place or, for debts to be performed later, from the date on which they fall due. Those who do not wish to be liable for a debt of the estate must renounce the inheritance within the period.

When does the community of heirs come to an end?

The community comes to an end upon the full division of the inheritance or upon the conversion of joint ownership into co-ownership in shares.

Independent Legal Assessment

Disputes in succession law most often proceed not around a single claim but along the axis of several actions that trigger one another. One heir’s claim for annulment of a title deed may raise the question of simulation by the deceased, the question of simulation may raise the calculation of the reserved portion, and that calculation may in turn raise an action for abatement. The characterisation and choice of strategy made at the outset of the dispute therefore determine the course of the whole process. Missing time limits of a preclusive character in particular may cause even a claim that is well founded on the merits to come to nothing.

The correct determination of the extent of the estate is no less decisive than the legal characterisation. Where bank records, the land registry, trade registry data and the transfers made by the deceased during their lifetime are not assessed together, there is a risk that the division will not reflect the true assets. In devising a road map in a particular file, we recommend that the following matters be given priority:

• Obtaining the certificate of inheritance and checking the shares it states against the statutory order of classes
• Documenting the asset and liability items of the estate and, where the burden of debt is heavy, calendaring the three-month renunciation period from the outset
• Examining the transfers made by the deceased during their lifetime separately from the standpoints of simulation and of abatement
• Where a will exists, checking the requirements of form and calculating the periods for annulment and abatement by reference to the date of opening
• Assessing the partition agreement where there is a prospect of agreement on the division, and otherwise the action for the dissolution of co-ownership
• Bearing in mind the five-year joint and several liability that continues even after the division

Independent Legal provides advisory and litigation services at every stage of succession law, from the determination of the status of heir to the division of the estate and the conduct of actions arising from succession.