An inheritance share is the proportion of the estate left behind on a person’s death that falls to each of the statutory heirs. The heirs acquire this share upon the death of the deceased, and the share represents the numerical value of their interest in the estate. The precise size of the share is determined during the opening of the succession and the process of division; each heir holds a proportion of the estate in accordance with the rules of inheritance law.
The contract concluded after the death of the deceased and the opening of the succession in order to transfer these shares is known as the “transfer of an inheritance share”. Agreements made before the succession has opened, by contrast, are characterised as contracts for the transfer of an inheritance right.
Upon the death of the deceased, the heirs acquire joint ownership over the assets of the estate. By the very nature of this form of ownership, the heirs must act unanimously in order to dispose of the estate. Since the division may take a long time to complete, however, heirs who need cash in particular may wish to dispose of their shares. It is precisely because of this need that the transfer of an inheritance share is separately regulated in the Turkish Civil Code No. 4721.
An inheritance share can be transferred only after the death of the deceased, since the share comes into existence only from that moment. Before death, a prospective heir may transfer only the inheritance right. Both the inheritance right and the inheritance share may be transferred to the other heirs or to third parties who are not heirs. The validity of both contracts is subject to particular formal rules.
The Distinction Between an Inheritance Right and an Inheritance Share
An inheritance share is the concept that indicates, after the death of the deceased, the extent to which the estate is to be divided among the statutory heirs. In short, it is the proportion of the deceased’s assets that each heir will receive.
That proportion emerges in the course of settling the deceased’s assets and debts, establishing the total value of the estate and determining how that value is to be distributed among those entitled. The size of the share is shaped both by the statutory provisions and by the will of the deceased.
Shares are generally distributed according to the proportions set out in the statute. The Turkish Civil Code No. 4721 regulates how the share is to be calculated and thereby guarantees that the heirs receive their shares in a balanced manner. Heirs may claim their shares and may equally transfer them; that transaction must, however, be carried out in accordance with the legal provisions in force.
An inheritance right, by contrast, describes the rights and interests that prospective heirs may obtain from the estate before the death of the deceased. Since the status of heir does not arise until death has occurred, at this stage one can speak only of prospective heirs. No share exists before the estate is opened; what exists is merely an expectant right.
In summary, the agreement concluded to transfer shares after the succession has opened is called a contract for the transfer of an inheritance share, whereas the agreement made before the succession has opened is called a contract for the transfer of an inheritance right.
Transfer of the Inheritance Right Before the Succession Opens
As noted above, no share exists before the succession has opened. What may arise during this period, by contrast, is the transfer of the inheritance right. So long as the estate has not been opened, the status of heir does not arise, and one can speak only of prospective (potential) heirs. What is transferred here is an expectant right that has not yet come into existence. A prospective heir may transfer this expectant right within the framework of the provision of Art. 678 of the Turkish Civil Code No. 4721.
For a contract for the transfer of an inheritance right concluded during the lifetime of the deceased to be regarded as valid, certain conditions must be met.
- The transferor must be a prospective heir: the person transferring the right must hold the position of prospective heir. That person may be a statutory heir or an appointed heir.
- Formal condition: the statute contains no express provision as to the form of a contract for the transfer of an inheritance right. In this gap, Art. 677 of the Turkish Civil Code No. 4721, which governs transfers after the death of the deceased, is applied by analogy. Accordingly, if the transfer is made to another heir, simple written form suffices; if the transferee is a third party who does not hold the status of heir, the contract must be drawn up before a notary.
- Participation or consent of the deceased: for the contract to become valid, the deceased must participate in, or give consent to, the transfer made by the heir. Such participation by the deceased does not place him or her under any obligation; it merely creates a legal relationship between the parties to the contract.
Transfer of the Share After the Succession Opens
The estate is opened upon the death of the deceased, and the heirs hold rights over the estate jointly until the division takes place. As a consequence of this form of ownership, the heirs may dispose of the assets in the estate only by acting together. In practice, however, the period between the opening of the succession and its division is often protracted. In order to soften the difficulty created by joint ownership, the legislature introduced the provisions on the transfer of an inheritance share.
Within this framework, a share may be transferred after the succession has opened and before the division has been completed. A share may thus be disposed of even while joint ownership continues.
For a transfer contract to be regarded as valid, the following conditions are generally required:
- The transferor must hold the status of heir: the person transferring the share must be an heir; that person may be a statutory or an appointed heir. Since a legatee does not hold the status of heir, a legatee cannot be a party to this contract.
- Formal condition: the transfer contract is subject to formal requirements. If the share is transferred to one of the heirs, written form suffices and simple written form is required. If, by contrast, the transferee is a third party who is not an heir, the contract must be executed in the form of a deed drawn up before a notary. Since these conditions are requirements of validity, contracts concluded in breach of them are not protected in law.
- Statutory limits: the transfer is subject to the limitations laid down in the legislation. An inheritance right may be transferred only in a manner that does not prejudice the rights of the statutory heirs.
A third party who acquires a share after the succession has opened obtains a personal right, not a right in rem. That party therefore has no power to take part in the division process; the status of heir does not pass from the transferor to the transferee. Consequently, the third-party transferee has no ability to bring an action for abatement or an action for equalisation.
For a detailed assessment of the concept of the estate, see our note entitled Action for the Determination of the Estate.
Liability of the Transferring Heir for the Debts of the Estate
The fact that a share has been transferred to another heir or to a third party does not alter the position as regards the transferring heir’s liability for the debts of the estate. As a rule, an heir who has disposed of his or her share continues, together with the other heirs, to answer for the debts of the estate.
Turkish Civil Code No. 4721, Art. 681
“The heirs are jointly and severally liable with all their assets, even after the division, for the debts of the estate to the division or transfer of which the creditor has not expressly or tacitly consented. Joint and several liability ends upon the expiry of five years from the date on which the division took place or, in the case of debts to be performed at a later date, from the date on which they fall due.”
Under this provision, the joint and several liability borne by an heir who has transferred his or her share by a transfer contract, together with the other heirs, continues for 5 years. Once 5 years have elapsed from the date on which the division took place, or from the date on which debts payable pursuant to the division fall due, the transferring heir’s liability comes to an end.
Liability of the Transferee for the Debts of the Estate
The person who acquires the share is liable for the deceased’s estate debts on a limited basis. The scope of that liability is determined in proportion to the value of the share acquired.
The transferee is under an obligation to contribute to the debts of the estate in proportion to the share acquired. That is to say, participation in the debts is measured by the value of the share acquired. Liability nevertheless remains limited to that share and does not extend to the transferee’s personal assets.
A third-party transferee of a share is liable, solely with the assets acquired, for a period of 2 years pursuant to Article 202 of the Turkish Code of Obligations No. 6098. In other words, for two years from the date of transfer the transferor and the third-party transferee are jointly liable for the debts of the estate, limited to the assets transferred.
Creating a Pledge or Mortgage over an Inheritance Share
As noted above, inheritance shares are subject to the regime of joint ownership before the division takes place. Under that regime the shares are not concretely determined and the power of disposal may be exercised only by the owners acting together. For this reason it is not considered possible to create a right of pledge over an inheritance share.
A different view is defended in the doctrine, however. On that view, since the share may be transferred notwithstanding joint ownership, the creation of a pledge ought likewise to be accepted. The same approach maintains that it must be possible to conclude a contract capable of being characterised as a promise to create a pledge.
Attachment of an Inheritance Share
The Enforcement and Bankruptcy Act No. 2004 does not list inheritance shares among the assets that cannot be attached. A share may therefore be attached. As with the heir’s other assets, creditors may have an attachment placed on the inheritance share. The share is regarded as an asset capable of serving as security for the heir’s creditors, and those creditors have the power to have it attached.
The attachment is directed at the estate assets that will fall to the heir’s share as a result of the division.
The attachment may also be annotated on the land registry. In respect of the attached share, the heir loses freedom of disposal; the enforcement authority thereafter has a say in decisions concerning those assets. The creditor who obtained the attachment cannot, however, request a sale before the community of heirs comes to an end. A sale may be requested only in respect of the estate assets falling to the heir’s share as a result of the division.
Under Article 648 of the Turkish Civil Code No. 4721, a creditor who has acquired an heir’s share, who has had that share attached, or who holds a certificate of insolvency issued against the heir may request the judge of the Civil Court of Peace to appoint a representative to take part in the division in place of that heir. In that event the representative steps into the heir’s place and takes part in the division process.
Frequently Asked Questions
Can an inheritance share be transferred?
The Turkish Civil Code No. 4721 permits the transfer of a share. The precondition, however, is that the deceased has died.
Is a transfer possible during the lifetime of the deceased?
So long as the deceased is alive, there can be no question of an inheritance share. Prospective heirs cannot transfer their shares at this stage; they may, however, transfer their inheritance rights. The validity of such a contract depends on the deceased participating in it or giving consent to it.
In what form is the transfer contract made?
If the share is to be transferred to one of the heirs, simple written form suffices. For transfers to third parties who are not heirs, execution of the contract in the form of a deed drawn up before a notary is a condition of validity. Contracts concluded without observing this condition are invalid.
Can an inheritance share be attached?
A share may be attached. The creditor who obtained the attachment cannot, however, request a sale until the estate has been divided and the assets falling to the heir’s share have been determined. A request for sale may be made only after the division.
The Independent Legal Assessment
Although the transfer of an inheritance share is in practice often seen as a pragmatic solution arising from a need for cash, it is a transaction whose consequences call for careful structuring. The fact that the transferee does not acquire the status of heir, that the right obtained is personal rather than in rem, and that the transferee cannot take part directly in the division may create a considerable distance between the parties’ expectations and the legal outcome.
The liability dimension is likewise frequently overlooked. Having transferred a share does not immediately release the transferring heir from the debts of the estate; joint and several liability continues for a further five years. The third-party transferee, for its part, bears liability for two years, limited to the assets acquired. In any given transaction it is advisable to clarify the following points in advance:
- Establishing whether the transferee is an heir or a third party and choosing simple written or notarial form accordingly
- Documenting the participation or consent of the deceased in transfers made during his or her lifetime
- Calculating the true economic value of the share transferred by deducting the liabilities of the estate
- Taking account in the contract of the five-year liability period for the transferor and the two-year period for the transferee
- Investigating, before the transfer, whether any attachment or annotation exists over the share
Independent Legal advises in this field, from the drafting of contracts for the transfer of an inheritance share to the analysis of liability for estate debts and the conduct of disputes arising during the division process.