Following the death of a person, the fate of the wealth they created throughout their life, and how to ensure the continuity of this value is a common concern shared by many people. In Turkish law, these matters are regulated in the "Inheritance Law" book, which is the third book of the Turkish Civil Code No. 4721. In the first of our series of articles, in which we will examine the law of inheritance through various topics of interest, we will discuss the concept of inheritance and heirdom. In following articles, we will touch on the frequently asked questions regarding the law of inheritance.
I. What is the Right of Inheritance and the Title of Heirdom, and When do They Arise?
The right of inheritance is an “expected” right in terms of heirs. In other words, the rights of statutory or testamentary heirs regarding the inheritance share arise only with the death of the legator and depend on whether the heir is alive at the date of death of the legator. Accordingly, the legator continues to be the owner of the goods and rights that will be included in the estate as long as they are alive. At this stage, the right of inheritance has not yet arisen for the heirs. In this respect, a real or legal person with the expectation of inheritance does not have the right to make any claim for the inheritance before the opening of the succession [in other words, the death of the legator].
Moreover, the acquisition of the right of inheritance also depends on possession of the title of heirdom, except for specific cases. Heirdom may be lost in cases of successional indignity, disinheritance, or renunciation of inheritance. These cases will be discussed in the following articles of the series.
II. Who is a Statutory Heir?
Statutory heirdom is a status that is not dependent on the will of the legator and arises directly from the law upon the death of the legator. Statutory heirs are blood relatives of the legator, adopted children and the surviving spouse.
III. Who is a Testamentary Heir?
Testamentary heirdom arises when the legator leaves some or all assets to a certain person of their own free will. The testamentary heir has the title of heirdom just like a statutory heir.
IV. Who is a Beneficiary of the Will?
A beneficiary of the will is a person whom the legator wishes to make an unrequited gain from his estate. The beneficiary of the will does not have heirdom, but only a relative right of claim and does not have a direct right on the asset.
V. What Are the Differences Between Statutory Heirs, Testamentary Heirs, and Beneficiaries?
There are two distinct types of heirdom in Turkish law, which are statutory and testamentary heirdom. With the death of the legator, all heirs, regardless of the distinction, become successors of the legator. However, there are some differences between statutory and testamentary heirs. For example, descendants of a statutory heir replace them in accordance with the principle of succession in cases where the statutory heir cannot attain the capacity of heirdom. Despite the same principle applies to the descendants of a testamentary heir, it is possible to stipulate the opposite in the testamentary contract. Another difference is that only statutory heirs can request adjustment. Yet, in cases where statutory heirs request adjustment, testamentary heirs can also benefit from it.
The beneficiary of the will, who is not an heir, acquires the right on the will only when this property is duly transferred to him by the debtor of the will [i.e., heirs, executor of the will or beneficiary of the will in the sub-testament]. We will discuss the concept of sub-testament in length in our upcoming articles.
VI. Can an Heir Be Appointed for Only a Certain Part of the Estate?
There is no legal obstacle for the appointment of an heir for all or a certain part of the estate. If an heir is appointed for only a certain percentage of the estate, the rest of the estate is left to the statutory heirs.
VII. Can a Person Who Has Not Yet Been Born, such as a Future Grandchild, Become an Heir?
Yes, it is possible according to Turkish law. According to the Turkish Civil Code, individuals have the capacity to have rights from the moment they are conceived on condition that they born alive. Thus, a fetus may possess heirdom as long as it is born alive.
The legator can also make a testamentary disposition in favour of an individual who has not yet conceived [e.g., future grandchild]. Therefore, a fetus can both have the title of statutory heir and benefit from testamentary dispositions.
VIII. Is It Possible to Appoint a Legal Entity as an Heir?
Yes, legal entities can also be appointed as heirs. However, legal entities [apart from the treasury] can only have testamentary heirdom.
IX. Is It Possible to Make a Testamentary Contribution to a Certain Community That Does Not Have the Status of a Legal Entity?
Yes, it is possible to contribute to a certain community that does not have the status of a legal entity [for example, X university students] through a testamentary disposition. Nevertheless, such a community can not attain heirdom, but can only be a beneficiary of the will.
X. Can Foundations and Associations be Heirs?
Foundations and associations are deemed as private law legal entities under Turkish law. Therefore, foundations and associations, like all legal entities, can have the title of testamentary heir.
XI. Can Foundations be Established by a Will?
The legator can also establish a new foundation through a testamentary disposition instead of appointing an existing foundation as an heir or leaving a certain property to it.
In this case, the foundation becomes a legal entity not with the death of the legator, but with the fulfilment of the legal requirements [which is, the registration of the foundation] afterwards. In this case, the official deed in foundations established before death is replaced by the will or testamentary contract.
By M. Tarik Gueryuz, Partner, and Aziz Can Cengiz, Junior Attorney, Guleryuz & Partners