Succession law is a technical field extending from the determination of the scope of the estate to the division of the inheritance, from the legal review of a will to title deed and transfer procedures, and to the resolution of disputes arising between heirs. On subjects such as simulation by the deceased, abatement, renunciation of inheritance and the dissolution of co-ownership, conducting the process in strict compliance with the rules of procedure is an element that directly determines the outcome.
A lawyer practising in this field provides legal support in procedures relating to the certificate of inheritance, in the determination of the estate, in the division process, in succession actions and in other disputes arising from this branch of law, thereby helping the process advance in a manner consistent with the provisions of the Turkish Civil Code.
Below we examine which functions a succession lawyer undertakes, the types of dispute most frequently raised in practice, and the basic legal processes relating to succession actions.
The Concept of a Succession Lawyer
A succession lawyer is a lawyer who provides legal support in the lawful division of the assets left behind after the death of the deceased, in the administration of the estate, and in the resolution of disputes emerging between the heirs.
The scope of this support is not confined to the conduct of litigation. Advisory and representation services are provided in a large number of procedures and types of action, such as the determination of the estate, the distribution of the inheritance, claims arising from an infringement of the reserved portion, actions based on simulation by the deceased, the drafting of a will and disputes arising from that disposition.
Principal Functions Undertaken by a Succession Lawyer
Advising the Heirs
The division process does not consist solely of technical and legal procedures; it is also a sensitive period as regards the relationships between the heirs. For this reason, the legal advice given to the heirs is decisive both for the progress of the process in accordance with the legislation and for the prevention of disputes at the outset.
By informing the heirs of their rights and obligations, the lawyer provides support in the determination of the estate, in the division of the inheritance, in title deed and transfer procedures, and in other processes arising in this field. The advance assessment of legal risks that may arise on subjects such as the reserved portion, estate debts, renunciation of inheritance and wills also falls within this scope.
The advice provided in succession law serves not only to resolve existing disputes, but also to forestall losses of rights and family disagreements that may arise in the future.
Representation of the Heirs
During the division process, the heirs may for various reasons be unable to carry out legal procedures in person, or may be unable to attend official formalities. In such cases the lawyer carries out the necessary procedures on behalf of the heirs, ensuring that the process advances lawfully and effectively.
The scope of the authority to represent may, depending on the nature of the succession process, cover a broad range of legal and administrative procedures. That range may be grouped under three headings.
Representation before official institutions. Procedures required before land registry directorates, notaries, banks, tax offices and other public institutions may be carried out through the lawyer. Obtaining the certificate of inheritance, transfer procedures at the land registry, applications concerning bank accounts and processes relating to inheritance and transfer tax are pursued within this scope.
Management of negotiation and settlement. It is a frequent occurrence for a dispute to arise between the heirs during the division. Having regard to the rights and interests of the client, the lawyer may take part in settlement talks, conduct the division negotiations and contribute to the conclusion of the dispute without it being carried to the judicial stage.
Representation at the litigation stage. In actions for the dissolution of co-ownership, in actions for annulment of title deed and registration based on simulation by the deceased, in disputes arising from a will and in other actions concerning the estate, the lawyer follows the proceedings in their entirety on behalf of the client. The preparation of pleadings, the submission of evidence to the case file, attendance at hearings and recourse to the appellate remedies are conducted within this scope.
In conclusion, being represented by a lawyer is not merely a choice that makes procedures easier; it also constitutes an important safeguard for the protection of the heir’s rights, the prevention of procedural errors and the conduct of the process in accordance with the legislation.
Distribution of the Inheritance
The distribution of the inheritance is the stage at which the assets of the deceased are lawfully divided among the heirs. At this stage, immovable property, bank accounts, receivables and other elements included in the estate are distributed in accordance with the inheritance shares. In practice, however, it is frequently seen that the heirs fall into disagreement, that the scope of the estate is contested, or that no agreement can be reached on the manner of division.
By ensuring that the division is conducted lawfully, the lawyer safeguards the rights of the heirs. The determination of the estate, the preparation of the division procedures, the conduct of official formalities and the resolution of disputes fall within the scope of this support. Where no agreement can be reached, the conduct of the actions relating to the division is undertaken.
As can be seen, the distribution of the inheritance does not consist solely of dividing up the assets; it is an important stage that also involves protecting the rights of the heirs and concluding potential disputes by legal means.
Advice on Inheritance and Transfer Tax
In the transfer process the heirs do not merely take over the assets in the estate; they also face statutory obligations arising from inheritance and transfer tax. The correct declaration of the immovable property, bank accounts, company shares and other asset elements included in the estate is important for the progress of the tax process in accordance with the legislation.
The lawyer advises the heirs on the proper management of the procedures relating to inheritance and transfer tax. The identification of the assets included in the estate, the determination of the values forming the basis of the tax, the conduct of the declaration process and the timely performance of the obligations are monitored within this scope.
The services provided under this heading may be grouped in four points:
- Determination of the tax base. The movable and immovable elements in the estate are assessed together with the debts, and the base for the inheritance and transfer tax is established.
- Examination of reliefs and exemptions. The legal assessments required for the exemptions and reliefs set out in the legislation to be applied in the heirs’ favour are carried out.
- Monitoring of the declaration process. The inheritance and transfer tax return is prepared, submitted to the relevant tax office, and the process is followed so that no step is left incomplete.
- Management of the payment stage. Support is given to the heirs on the payment plan for the tax debt, the possibilities of payment by instalments and the payment schedule.
This advice assists the heirs in performing their tax obligations correctly, and prevents penal sanctions, procedural errors and unnecessary financial burdens from arising.
Drafting Wills and Other Dispositions upon Death
Wills and other dispositions upon death are important legal transactions determining how a person’s assets are to be divided after their death. Through instruments such as a will, a contract of inheritance, a contract of waiver of inheritance, a partition agreement and a contract of maintenance until death, the deceased may place their intention to dispose of their assets on a secure legal footing.
The lawyer conducts the process with a view to documenting the intention of the deceased in accordance with the legislation and preventing disputes that may arise in the future.
The principal services provided within this scope are as follows:
- Drafting of the will. Support is given in drawing up wills that satisfy the statutory formal requirements, in line with the deceased’s intention to dispose of their assets.
- Drawing up a contract of waiver of inheritance. Contracts by which an heir waives their inheritance rights in whole or in part are prepared in accordance with the law.
- Structuring of partition agreements. The agreements to be made by the heirs concerning the division of the estate are drawn up, thereby forestalling disputes that might arise later.
- Preparation of contracts of maintenance until death. Contracts for the transfer of assets in return for an obligation of care are drawn up, and compliance with the official formal requirements is monitored.
- Advance analysis of legal risks. The possibility of disputes arising in the future on grounds such as infringement of the reserved portion, a defect of form, simulation or lack of capacity is assessed from a legal standpoint.
The lawful preparation of dispositions upon death is of great importance both for the protection of the deceased’s intention and for the prevention of disputes that may later arise between the heirs. Obtaining professional support ensures the validity of these transactions and secures the rights of the parties.
Transfer and Registration Procedures
Transfer and registration procedures denote the formal passing of the deceased’s assets into the names of the heirs. In this process, various legal and administrative steps are carried out before land registry directorates, banks, tax offices and other official institutions.
The lawyer lawfully carries out procedures such as obtaining the certificate of inheritance, effecting the transfer at the land registry, monitoring the inheritance and transfer tax processes and preparing the necessary applications. Where the number of heirs is large or the estate comprises extensive assets, professional support allows the procedures to be completed more quickly and without difficulty.
The transfer and registration stage is the precondition for the heirs actually being able to exercise their rights over the estate; the complete conduct of the process is therefore decisive for the prevention of losses of rights.
Disputes and Types of Action Frequently Encountered in Practice
Various disputes may arise between the heirs during the division of an inheritance. The scope of the estate, the calculation of the inheritance shares, the interpretation of the provisions of a will, the infringement of the reserved portion and the division of immovable property are the subjects most often made the object of litigation in practice.
Since the greater part of the disputes in this field require a technical legal assessment, the proper procedural conduct of the processes is of critical importance. At this point the lawyer provides support with a view to protecting the rights of the heirs, conducting the actions and preventing potential losses of rights.
Disagreements over the Division
A difference of opinion may arise between the heirs as to how the estate is to be divided. Disagreements are concentrated in particular in respect of immovable property, buildings having the character of a family residence, company shares and high-value asset elements.
Where the parties cannot reach agreement, the division of the inheritance by judicial means comes into question; in that case, actions for the dissolution of co-ownership or actions relating to the division of the inheritance may be brought. The lawful conduct of these processes is important in ensuring that the heirs do not suffer a loss of rights.
Determination of the Estate and Settlement of Estate Debts
The concept of the estate covers the whole of the assets, receivables and debts of the deceased at the moment of death. Before proceeding to the division, the scope of the estate must have been correctly determined.
At this stage the immovable property, bank accounts, receivables and debts of the deceased are investigated, and the financial obligations relating to the estate are established. Where the estate is insolvent, the legal liability of the heirs may additionally come into question.
Renunciation of Inheritance
An inheritance comprises not only assets but also the debts of the deceased. Where the estate is insolvent, the heirs may renounce the inheritance and thereby escape liability for those debts.
The declaration of renunciation must be made to the Civil Court of Peace within three months of the date on which the death of the deceased was learned of. If the period is missed or a procedural error is made, the heirs may become personally liable for the debts.
Wills and Challenges to Wills
A will is one of the dispositions upon death that determine how a person’s assets are to be divided after their death. Its validity depends on compliance with the formal requirements laid down in the Turkish Civil Code.
Annulment of a will may be sought on grounds such as lack of capacity, duress, mistake, fraud or non-compliance with the required form. Where the reserved portion has been infringed, actions for abatement additionally come into question.
Infringement of the Reserved Portion and the Action for Abatement
The reserved portion denotes the inheritance right conferred by law on certain heirs, which may not be encroached upon. If gifts made by the deceased or the provisions of a will infringe that portion, an action for abatement may be brought.
The purpose of an action for abatement is to reduce the dispositions of the deceased to the limit drawn by the law and to protect the rights of the heirs entitled to a reserved portion.
Simulation by the Deceased (Concealment of Assets from the Heirs)
Simulation by the deceased describes the sham transactions carried out by the deceased with a view to concealing assets from the heirs. Its most typical form in practice is the presentation as a sale of a transfer of immovable property that is in reality a gift.
In such a case the heirs may bring an action for annulment of title deed and registration, seeking a declaration that the sham transaction is invalid and the return of the immovable property to the estate.
Dissolution of Co-Ownership
Where co-ownership between the heirs continues, an action for the dissolution of co-ownership may be brought in order to bring that co-ownership to an end.
The court may order the division of the immovable property in kind or the termination of the co-ownership by way of sale. The stages relating to the sale of immovable property by public auction in particular are among the matters that frequently give rise to disputes in practice.
The Function of Legal Support in the Succession Process
A succession lawyer provides support in the conduct of the procedures relating to heirship, in the correct determination of the estate, in the lawful conduct of the division and in the resolution of disputes arising in this field. On subjects such as simulation by the deceased, abatement, renunciation of inheritance, annulment of a will and the dissolution of co-ownership, the lawyer also contributes to the proper procedural conduct of the proceedings.
Proper Procedural Conduct of the Process
Procedures relating to succession law advance within the framework of particular rules of procedure, time limits and official formalities. Procedural errors made in obtaining the certificate of inheritance, in the determination of the estate, in title deed and transfer procedures or at the division stage may give rise to serious disputes at a later stage. It is therefore important that the process be structured lawfully from the very outset.
Monitoring Time Limits and Preventing Losses of Rights
Certain actions and procedures in this field are subject to preclusive periods and to statutes of limitations. Missing the time limits, particularly on subjects such as renunciation of inheritance, abatement and annulment of a will, may lead to losses that are difficult to make good as regards the heirs. The lawyer assists in the correct characterisation of the process and in the completion of the steps within time.
Managing the Dispute between the Heirs
During the division, a dispute may arise between the heirs concerning immovable property, estate debts or the manner of division. In such cases the proper management of the process is decisive in enabling the dispute to be resolved before it escalates. The lawyer provides support in conducting the discussions between the parties and in assessing alternative means of resolution.
Following Land Registry, Estate and Transfer Procedures
The succession process does not consist only of litigation stages; it also covers a large number of steps that must be conducted before land registry directorates, notaries, tax offices and other official institutions. The complete performance of stages such as the determination of the estate and the transfer and land registry procedures is important for the prevention of disputes that may arise in the future.
Conduct of Succession Actions
Actions concerning simulation by the deceased, abatement, annulment of a will, the dissolution of co-ownership and annulment of title deed and registration are types of action that require a technical legal assessment. In such files, the correct reading of the evidence, the determination of the litigation strategy from the outset and the proper procedural conduct of the proceedings directly affect the outcome.
Independent Legal Assessment
The factor determining the outcome in succession disputes is most often not the arguments on the merits, but the decisions taken in the first weeks of the process. A three-month renunciation period allowed to elapse before the debt position of the estate has been clarified, a failure to gather in time the grounds for an allegation of simulation by the deceased, or a failure to advance a claim for abatement expressly in the pleadings, produce consequences at later stages that are difficult to make good.
The matters we recommend be given priority when managing a succession process are as follows:
- Taking an inventory of the assets and liabilities of the estate at an early stage, in a form capable of grounding a decision on renunciation
- Calendaring separately the periods running in respect of renunciation, abatement and annulment of a will
- Examining the land registry records retrospectively in order to identify transfers capable of grounding an allegation of simulation
- Filing the inheritance and transfer tax return within time, once the valuations of immovable property and company shares have been completed
- Having regard, when a disposition upon death is being drawn up, to the balance of the reserved portion and to the formal requirements together
- Assessing the possibility of division in kind on the basis of technical data before seeking the dissolution of co-ownership
This content is intended for general information purposes only. Since succession law contains more detailed and time-bound rules than other fields, it is appropriate to obtain a legal assessment before taking any step. Independent Legal provides advisory and litigation services at every stage of succession law, from heirship procedures to the determination of the estate, and from actions for abatement and simulation by the deceased to proceedings for the dissolution of co-ownership.