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Turkish Law of Inheritance Series V.: Opening of the Will, Succession and Legal Remedies in Cases of Intervention to Inheritance Share

Turkish Law of Inheritance Series V

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Succession is essentially the passing of the legator's personal assets during their lifetime to the estate, subject to joint ownership upon the legator’s death, and then to individual heirs. Prior to the death of the legator, the legator preserves all of their property rights, while the future heirs do not attain heirdom, let alone any rights on legator’s property. The titles of legator and heir are gained only upon the death of a person, and from then on, the heirs are entitled to the inheritance. For this reason, the most contentious aspects of inheritance law are succession, which is the transfer of the inheritance and possible interventions to the heirs’ inheritance shares.

Succession and interventions to the inheritance share via testamentary dispositions and legal remedies against them will be examined in this article.

I. What Happens During and Following the Opening of the Will? Who is Notified of the Will?

Following the death of the legator, the institution keeping the will, or the person who comes across the will among the legator's possessions, must immediately deliver it to the civil magistrate. The magistrate is then required to open the will within one month of receiving it. To open the will, the magistrate determines a date, and this date is notified to the heirs and other interested parties whose addresses are known. On the designated day, the will is opened in the presence of the heirs and interested parties. Afterwards, the magistrate keeps the open will in a secure location.

Since the opening and reading of the will is not an uncontested proceeding, it is essential to ensure the complete formation of the court, by including every relevant person as a party to the proceedings. This requirement can prolong the opening the will, especially when there are a large or indeterminable number of heirs.

In addition, the magistrate serves a certified copy of the relevant parts of the will to the beneficiaries. Afterwards, beneficiaries have one month from the date of notification to raise any objections. Provided that no one objects within this time frame, the person in whose favor the testamentary disposition is made receives an official document stating that they are an heir or a beneficiary of the will. Opening of the will is completed after the determination of all beneficiaries.

II. Who is the Executor of the Will?

The “executor of the will” is a person appointed by the legator with a testamentary disposition or by the court at the request of the heirs to exercise the will in accordance with the legator’s wishes. The executor's responsibilities include preparing the heir list, collecting the estate's receivables, paying the debts, representing the estate in lawsuits and proceedings, and managing the estate.

III. When and How Does the Inheritance Share Pass to The Heirs?

With the death of the legator, the entirety of the estate including all of the assets and liabilities as a whole passes to the heirs. The partnership of the heirs on the estate is in the form of joint ownership.

IV. How Does Succession Work with Regard to Company Shares?

The answer to this question varies according to the type of company. In a joint stock corporation [in Turkish: anonim şirket], the property rights arising from share ownership are immediately transferred to the heir, while the right to participate in the general assembly and voting rights can only be used with corporate approval. While the corporation cannot rely on share transfer restrictions against heirs, it may nevertheless avoid approving the transfer by requesting to purchase the shares transferred through succession for their actual value.

In the event of the death of a shareholder in a limited liability partnership [in Turkish: limited şirket], the transfer of the legator's shares does not require a corporate approval. Upon death, all rights and debts arising from the share pass to the heirs upon the service of a certificate of inheritance, will or an inheritance contract. However, the company may instead opt to purchase the shares for their actual value.

V. How Are Foreign Assets Transferred?

Matters related to inheritance are subject to the national law of the deceased. Therefore, the inheritance of Turkish citizens is subject to the Turkish Civil Code. However, in terms of foreign assets, the formal conditions and regulations that may exist in the country where the assets/goods are located should be considered in the transfer of property and/or other real rights. This situation is not an exception to the principle of universal succession and does not prevent the heirs from acquiring the movable or immovable property in question upon the death of the legator.

VI. Can Someone Become a Member of the Board of Trustees of a Foundation Through Succession?

No, while the estate is made up of the entirety of the legator’s assets, only transferable private law relations are subject to succession. The rights strictly bound to the legator as a person are terminated with death. Since membership in the board of trustees of the foundation is also a right that is strictly bound to the person, it is not possible to inherit or transfer it with a testamentary disposition. As a result, if it is desired that this title be assumed by a person appointed by the legator upon their death, this is only possible with an alteration to the articles of foundation during the legator's health.

VII. Are Heirs Liable for the Legator’s Tax Obligations?

Debts, as well as all rights and receivables in the legator's inheritance, pass to the heirs in accordance with the principle of universal succession. In principle, the heirs are personally liable for these obligations. That is to say, heirs are personally liable for the entirety of the legator’s obligations regardless of their inheritance shares. Only after the fulfilment of an obligation can the heir request recourse from other heirs in accordance with their inheritance shares.

Nevertheless, there is an exception to this rule with regard to the legator's tax obligations. In the event of death, tax obligations of the taxpayer will pass to their legal and appointed heirs who have not rejected the inheritance, in accordance with their inheritance shares. Therefore, unlike other obligations, heirs are only liable for tax obligations in proportion to their inheritance shares.

VIII. Do the Heirs Have the Right to Object to the Will and Inheritance Agreements [Testamentary Dispositions]?

The heirs may request the annulment of the disposition by filing an action for annulment against all or a part of the testamentary disposition due to reasons such as the incapacity or disability of the legator at the time of the disposition, the illegality and morality of the disposition, or its formal deficiencies.

IX. What Can an Heir Do If Their Statutory Entitlement is Violated by the Will?

An heir whose statutory entitlement is violated by the will [or inheritance contract] may request that the testamentary disposition be annulled or file a lawsuit for reduction. In practice, both of these claims are often made in a single case – for example, "I request the annulment of the will, and if my annulment request is denied, this time I request that the part of the will that infringes on my reserved share be reduced".

X. What is the Action for Reduction? What Does Reduction Mean in Inheritance Law?

An action for reduction is a type of inheritance law case filed to prevent the violation of statutory entitlement and to ensure legality of the legator’s testamentary dispositions.

If the request for reduction is granted, the testamentary dispositions of the legator that violate the statutory entitlement may be reduced, and even some of their transactions inter vivos may be subject to reduction. If the statutory entitlement cannot be provided despite the testamentary disposition being reduced, transactions inter vivos in favor of heirs and third parties are reduced. If statutory entitlement still cannot be provided, testamentary dispositions and/or transactions inter vivos made in favor of public legal organizations, publicly beneficial associations, and foundations are reduced.

XI. What are the Most Common Reasons of Will Annulment?

In practice, the reason for the annulment most frequently asserted by heirs -especially by those whose statutory entitlement has been violated-, is that the legator was mentally incapable at the time the testamentary disposition was made since mental competence is the primary condition for a valid will.

XII. Can Heirs Object to the Legator’s Transactions Inter Vivos?

As the titles of heir and legator can only be assumed upon death or in cases similar to death determined in the law, while the legator is still alive, the heirs have no right to the legator's property unless they have rights arising from other private law relationships.

As a result, future heirs have no power over the legator's transactions inter vivos, as long as they are established in conformity with applicable law and contracts. If the heirs can prove that the transactions were conducted in order to devalue the estate, they can file an inheritor collusion case and request the annulment of the transaction.

XIII. Does the Surviving Spouse of the Legator Have a Right Arising from the Matrimonial Regime? What is the Relationship Between Inheritance and Matrimonial Regimes?

Since 2002, the matrimonial regime between spouses is the “participation in acquired property” regime [unless otherwise agreed]. Upon the legator’s death, the surviving spouse has the right to request their share from the liquidation of the regime from the estate. That is, the surviving spouse receives half of the difference in value between the assets they, and the legator, acquired during the marriage from the estate of the deceased spouse.

The remainder of the estate is then distributed among the heirs, including the surviving spouse, once the matrimonial regime is liquidated. In summary, if the marriage ends due to death, the property regime is liquidated first, followed by the distribution of the remaining estate. The right of inheritance and the spouse's right arising from the matrimonial regime continue to exist independent from each other.

By Tarik Gueryuz, Partner, and Aziz Can Cengiz, Junior Attorney, Guleryuz & Partners

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