Rights and Protection in Inheritance Matters: A Guide to Turkish Inheritance Law

Rights and Protection in Inheritance Matters: A Guide to Turkish Inheritance Law Turkish inheritance law governs the division of the estate of a deceased person (the decedent) among statutory heirs and protects certain rights in this process. This guide provides detailed information on inheritance shares, the rights of the surviving spouse, the rights of forced heirs, limitations on testamentary freedom, various types of wills and their implications, renunciation of inheritance, and the necessary steps following the death of the decedent.

Overview of Pourparty
According to the Turkish Civil Code, heirs may include blood relatives, the surviving spouse, and individuals designated by the decedent in a testimonial. Those who inherit by law, rather than through the decedent's wishes, are called statutory heirs. Statutory heirs include blood relatives, the surviving spouse, adopted children and their descendants, and in some cases, the state. Others, such as unmarried partners, can only inherit if the decedent has legally designated them as heirs in a testimonial or inheritance contract; these heirs are known as testamentary heirs.4

Statutory heirs are classified into three categories:
• First Category: The decedent's direct descendants, such as children and grandchildren. Children inherit equal shares.
• Second Category: The decedent's direct descendants, such as children and grandchildren. Children inherit equal shares.
• Third Category: The decedent's grandparents and their descendants, like uncles and aunts.

Inheritance Share of the Surviving Spouse
The share of the surviving spouse depends on the category of other heirs:

• With heirs of the first category: The surviving spouse receives one-fourth (1/4) of the estate.
• With heirs of the second categor: The surviving spouse receives one-half (1/2) of the estate.
• With heirs of the third category or alone: If the surviving spouse is an heir alongside the decedent’s grandparents or their children (uncles, aunts), the spouse receives three-fourths (3/4) of the estate. The decedent’s cousins are not heirs in cases where the spouse inherits

Forced Share, Limitations on Testamentary Freedom, and Actions for Reduction
The Turkish Civil Code restricts testamentary freedom by granting certain heirs a forced share. These forced heirs include the decedent’s descendants, parents, and the surviving spouse. Forced heirship becomes particularly relevant if the decedent has made testamentary dispositions, such as a testamentary. The decedent can bequeath the entire estate or part of it to specific individuals or institutions, but the forced share shall still be respected. As per the principles of inheritance law, respecting the decedent’s will is paramount; thus, such dispositions are deemed legally effective unless challenged and annulled through a reduction claim (actions for reduction).

Forced Shares
• For Descendants: Half of the legal inheritance share is reserved as a forced share.
• For Parents: One-fourth of the legal inheritance share is reserved as a forced share.
• For the Surviving Spouse: The full legal inheritance share when there are also children or parents, or three-fourths when there are heirs from the third category.

This rule protects the forced share heirs against the will of the testator. A testator may make dispositions, provided that they do not infringe on the rights of compulsory heirs.
Action for Supplementation of the Forced Share

Forced heirs must initiate action within a specified period if the testator’s dispositions infringe on their forced share. If they do not bring forth an action for supplementation, these dispositions remain legally effective, even if they violate the forced share. When the testator makes dispositions that diminish the forced share, forced heirs have the right to file an action to secure their statutory share.

Specific limitation periods apply to such actions: the right to file expires one year after the heir becomes aware of the infringement on the forced share. Regardless, this right ends ten years after the will is opened or ten years after the opening of the estate for other dispositions.

Within the scope of the action for supplementation, testamentary dispositions (such as a will or inheritance contract) that infringe on the forced share are declared invalid and annulled to the extent of the infringement. Additionally, gratuitous transfers (gifts) made by the testator during their lifetime may also be subject to an action for reduction.

Disposition of Assets Upon Death
The Turkish Civil Code No. 4721 grants individuals the right to determine the disposition of their estate upon death within specific limitations and distinguishes between a testamentary and an inheritance contract. Such dispositions, known as "dispositions upon death," fall into two categories: testamentary and inheritance contracts. An inheritance contract is a bilateral arrangement, whereas a testamentary is a unilateral act and can be revoked solely by the testator. The annulment of a will does not require the consent of the beneficiary. These dispositions allow the testator to organize their estate as they wish, providing flexibility in estate distribution.

A testamentary is a declaration that specifies how a person’s assets should be distributed after their death and how their last wishes should be fulfilled. Testamentary may be made in writing or orally and are classified into three types:

• Public Will: A will drafted and formalized by a notary.
• Holographic Will: A will written and signed entirely by the testator.
• Oral Will: A will made orally in emergencies.

These types vary in form and the conditions under which they are created. The law imposes specific formal requirements for testamentary, and a testamentary is deemed invalid if these are not met. Similarly, a lack of testamentary capacity affects the validity of a will. However, this does not automatically render the testamentary null; it must be declared invalid through a challenge in court. Properly executed wills uphold the testator’s intent and ensure fair estate distribution.

Joint Will (Berlin Will)
Under Turkish law, a disposition upon death in the form of a joint will, as recognized in German law and commonly known as a "Berlin Will," is not accepted. A joint will, which is jointly written and signed by both spouses and includes mutual, interdependent dispositions upon death (corresponding Berlin Will), is not permitted under Turkish law. Such a joint will would be deemed invalid due to non-compliance with formal requirements. For example: "The surviving spouse shall inherit everything from the spouse who dies first." If spouses wish to designate each other as heirs irrevocably or mutually renounce inheritance in favor of their children, this can only be achieved through an inheritance contract.

In Germany, however, joint wills (Berlin wills) are frequently encountered. Whether and to what extent such wills remain valid is subject to debate. The prevailing opinion is that, provided the necessary conditions are met, the joint will may be upheld and considered valid as a unilateral will of one party (Serozan/Engin, Miras Hukuku, 251). It is therefore advisable to seek legal counsel before drafting a will or in the event of an existing will to determine its validity.

Inheritance Contract
An inheritance contract is an agreement made by the testator during their lifetime with other individuals, which becomes effective after their death. Through this contract, the testator can specify how their estate should be divided upon their passing and designate their heirs. The inheritance contract is concluded between the parties by mutual consent and outlines the testator’s decisions regarding their estate. Unlike a will, an inheritance contract constitutes a bilateral legal act and cannot be revoked unilaterally; it may only be dissolved by mutual agreement of the parties. Additionally, an inheritance contract can be contested if the testator acts in breach of the agreement or fails to fulfill agreed-upon obligations.

The inheritance contract allows the testator to structure the distribution of their assets according to their personal wishes, enabling more comprehensive estate planning and administration.

Life Care Agreements
A Life Care Agreement, is an arrangement in which an individual in need of care and support due to age or illness transfers certain assets to the caregiver. In return, the caregiver commits to providing the necessary care, assistance, and support to the dependent person until the end of their life.

According to Article 612 of the Turkish Code of Obligations, such an agreement must be concluded in the form of an inheritance contract; otherwise, it is considered invalid. The contract may be terminated through mutual consent of the parties, the death of the caregiver, insolvency, or similar circumstances.

Will Contest
A will contest refers to the invalidation or annulment of dispositions made by the testator during their lifetime, which only take effect upon their death. Such a contest can be initiated by heirs or other entitled parties through a lawsuit in court.

Possible grounds for contesting these dispositions include:

• Lack of Testamentary Capacity: If the testator lacked the legal capacity to make a will at the time of the disposition.
• Defective Will: If the testator was misled, under a mistaken belief, or coerced.
• Violation of Law or Morals: If the disposition contravenes public order, morality, or applicable law.
• Formal Errors: If the disposition does not comply with statutory formal requirements.

An action in rescission can be brought by an heir or a legatee with an interest in the invalidation of the disposition. In these cases, the reason for contesting does not automatically void the disposition; only a successful court action renders the disposition—such as a will—ineffective.

The Importance of Deadlines in Contesting a Will
The Turkish Civil Code sets specific limitation periods for contesting a will. A one-year period begins from the date the grounds for contesting the will become known. If no lawsuit is filed within this period, the right to contest expires. Regardless, a maximum period of ten years applies; beyond this, the right to file a claim is entirely forfeited. An extended period of twenty years applies in cases involving fraudulent defendants. This twenty-year period begins upon the opening of the will, providing extended protection against malicious actions.

Disinheritance
Disinheritance allows the testator to revoke the inheritance rights of a forced heir. Turkish law distinguishes between two types of disinheritance: criminal disinheritance and Disinheritance Due to Insolvency. Disinheritance applies only to the person disinherited; their share is inherited by their descendants.

According to the law, punitive disinheritance is allowed if the heir has committed a serious offense against the testator or their family, or if the heir has severely neglected family obligations toward the testator. The disinheritance must be explicitly stated in the will, with the reason detailed. A disinherited forced heir loses their compulsory portion and is excluded from the inheritance.

Disinheritance Due to Insolvency enables the testator to revoke half of the compulsory portion from an insolvent forced heir (such as a child or grandchild) if an official record verifies the heir’s insolvency.
These provisions aim to balance the testator’s intentions with the rights of forced heirs.

Disclaimer of Inheritance
Disclaimer of Inheritance means that an heir waives their right to inherit from the testator, either fully or partially, through a formal agreement made before a notary. This agreement must comply with the legal formal requirements. A disclaimer can be made either for consideration (with compensation) or gratuitously.

In the case of a full disclaimer, the heir waives all future inheritance claims; in a partial disclaimer, the waiver applies only to certain assets or specific portions of the estate. An heir who disclaims their inheritance, along with their descendants, is excluded from the line of succession. However, if the disclaimer agreement was concluded under error, fraud, or duress, it may be contested and annulled.
A disclaimer of inheritance is an effective method for preventing potential inheritance disputes among heirs. It is recommended to undertake this process with the assistance of an experienced legal advisor.

Renunciation of Inheritance
Upon the inheritance devolving, the liability for the decedent’s debts transfers to the heirs. However, heirs have the right to renounce the inheritance. The renunciation must be made within three months of the decedent’s passing through a written declaration submitted to the probate court. If the renunciation is not declared within this period, the inheritance is considered accepted.

Forced Heirship Supplement Claim for Hidden or Disguised Transfers
Inheritance manipulation occurs when a testator transfers certain assets gratuitously to another person but disguises the transfer as a sale or care agreement to disadvantage forced heirs. The aim of such actions is to diminish the rights of forced heirs, preventing them from claiming their entitled portions through a supplementation claim. Here, the testator represents a gift as an apparent sale to evade future claims on the estate.

Claims for inheritance abuse examine four elements of fraudulent concealment:
• The apparent contract,
• The agreement to disguise the transaction,
• The intent to deceive third parties (heirs),
• The secret arrangement that reflects the true intention of the testator as a gift.

Such disguised contracts are often framed as sales or gift contracts, without genuine legal effect. The concealed agreement reveals the testator's actual intent. Forced heirs, statutory heirs, appointed heirs, and adopted children are entitled to initiate such claims. However, those who have disclaimed inheritance, renounced their inheritance rights, or were disinherited by the testator do not have standing.

Inheritance abuse claims can only be filed after the testator's death and are not subject to statutes of limitations. This concept of inheritance abuse has been shaped largely by the jurisprudence of the Turkish Supreme Court of Appeals and legal doctrine.

Necessary Steps After the Death of the Testator
After the testator’s death, the following steps are necessary:

1. Application for a Certificate of Inheritance: The heirs must apply to the probate court for a certificate of inheritance, which verifies who the heirs are and the proportion of their inheritance shares.
2. Disclaimer of Inheritance: If heirs wish to disclaim the inheritance, they must do so within three months by declaring it before the probate court.
3. Partition of the Estate: The heirs may either agree on a division arrangement or file an action for estate division with the court.

Turkish inheritance law aims to ensure a balanced relationship between the rights of the testator and the obligations of the heirs, facilitating an equitable distribution of the estate.
Professional legal guidance is important in this process, both regarding the rights and responsibilities of the heirs and in relation to the debts and claims of the testator.

Determination of Heirship
The primary document for determining heir status is the certificate of inheritance. This is issued either by the probate court or a notary. However, in cases involving foreign interests, a notary cannot issue a certificate of inheritance. If the testator or an heir holds foreign citizenship, the probate court must be contacted.

A German certificate of inheritance is not recognized in Turkey for real estate purposes. Therefore, it is necessary to apply for a separate certificate of inheritance in Turkey. However, German certificates of inheritance and similar documents may serve as evidence in Turkey if accompanied by an apostille. Nonetheless, to settle the estate in Turkey, a Turkish certificate of inheritance is always required. Turkish probate courts take German certificates into account and adjust the heir status accordingly.

Inheritance Tax
Inheritance tax in Turkey is governed by the Inheritance and Gift Tax Law dated June 8, 1959, No. 7338. Tax liability is based on the Turkish citizenship of the heir and the location of the estate within Turkey. This means that Turkish citizens living abroad are also subject to Turkish inheritance tax law. In the absence of a double taxation agreement between Turkey and Germany, double taxation can occur in certain cases. However, Germany credits the tax paid in Turkey, effectively preventing double taxation between Turkey and Germany.

After obtaining the certificate of inheritance, heirs are required to submit a tax declaration to the tax office of the decedent’s last residence and pay the inheritance tax. Once the heirs have presented a tax clearance certificate from the tax office, they may proceed with the division of the estate, transfer real property, and withdraw funds from bank accounts.
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