EGE TV – INHERITANCE LAW
EGE TV – INHERITANCE LAW
Could you explain to our viewers what inheritance law is? (Atty. Gizem GONCE)
Inheritance law is the entire set of rules that regulates the fate of the transmissible rights, debts, and other legal relationships of a person—whom we call the decedent—that do not terminate upon their death. To summarize briefly, inheritance law regulates who will substitute for the deceased and who will succeed them due to their death.
Inheritance law is a branch of private law that examines the dispositions mortis causa that people wish to make regarding their assets after their death, how their subject-matter assets will be distributed among legal heirs and other heirs in the event of their death, and how and in what order their debts will be paid.
In which areas is support provided regarding inheritance and guardianship law? (Atty. Aylin Esra EREN)
Drafting of wills,
Lawsuits for the annulment of a will,
Issuance of a certificate of inheritance,
Annulment of a certificate of inheritance,
Disclaimer of inheritance (refusal of inheritance),
Lawsuits for the annulment of a decision regarding the disclaimer of inheritance,
Lawsuits regarding the actual disclaimer of inheritance by heirs,
Lawsuits for the dissolution of partnership through the distribution of the inheritance,
Land registry cancellation and registration lawsuits regarding collusive transactions by the decedent (murisin muvazaası),
Abatement (tenkis) lawsuits regarding the claims of reserved-portion heirs.
How many types of heirs are there, and how can heirs benefit from these inheritances? (Atty. Gizem GONCE)
There are 2 types of heirs. First, the legal heir; second, the appointed heir.
A legal heir is a person who is an heir by law and is indicated as such in the legislation.
An appointed heir is an heir designated by the decedent through a disposition mortis causa, meaning by a will or an inheritance contract. Here, the will and the declaration of intent of the deceased are effective. While legal heirship is based on and arises from the law, appointed heirship arises from the will of the decedent.
Who are the heirs considered as the 1st, 2nd, and 3rd rank (parentelic order)? (Atty. Aylin Esra EREN)
1st Rank heirs are the closest relatives of the decedent, their direct descendants. That is; children, grandchildren, great-grandchildren, and so on.
2nd Rank heirs consist of the decedent’s mother and father, and their descendants—namely the siblings, nieces/nephews, and their children and grandchildren.
3rd Rank heirs consist of the decedent’s grandparents and their descendants—namely the decedent’s uncles, aunts, and their descendants.
So, who are the reserved-portion heirs? (Atty. Gizem GONCE)
As a rule, the decedent has the power to dispose of their assets as they wish; however, the law protects a portion of the inheritance share for the descendants, mother, father, and spouse. The reserved portion is the share of the inheritance granted to a legal heir that the decedent cannot dispose of. The decedent can only dispose of the part remaining outside of the reserved portions.
Heirs whose reserved portion is violated have the right to obtain their reserved portion by filing an abatement (tenkis) lawsuit. With the legislative amendment made in 2007, the reserved portion of siblings was abolished.
Reserved portion ratios are regulated by law as follows;
- For descendants, half of the legal inheritance share,
- For each of the mother and father, ¼ of the legal inheritance share,
- For the surviving spouse, the entirety of the legal inheritance share if they are an heir together with the descendants or the parentel of the mother and father; in other cases, ¾ of the legal inheritance share.
How does the state of divorce affect heirship? (Atty. Aylin Esra EREN)
Divorced spouses cannot be legal heirs to each other.
Gratuitous transfers mortis causa made by the decedent in favor of their spouse via a will also become void if a divorce subsequently occurs. However, the decedent may order otherwise in their disposition mortis causa. That is, they may state the validity of the will even in the event of divorce. Conversely, if the court has ruled for separation rather than divorce, the surviving spouse retains the right to legal inheritance because the marital relationship has not ceased to exist here.
An important issue regarding this topic is seen when a divorce case has been filed but one of the spouses dies before it concludes. Here, the spouse is a legal heir because the marital relationship, and thus the spouse's legal heirship, continues until the divorce decree becomes final. If one of the spouses dies in the meantime, the surviving spouse remains an heir. Here, the marriage terminates not by divorce, but by death.
When and in what situations does the State become an heir? (Atty. Gizem GONCE)
According to Turkish law, if there are no heirs in the first 3 ranks and the decedent has not appointed an heir through a disposition mortis causa, the State acquires the inheritance in the capacity of a legal heir.
If it is unknown whether the decedent has heirs or if all of the heirs are unknown, the Magistrate Judge makes an announcement twice with a 1-month interval and calls upon the beneficiaries to notify them of their heirship status within 1 year starting from the last announcement. If no one applies within this period and the Magistrate Judge cannot identify any heirs, the inheritance passes to the State. In this case, the right of an heir who appears subsequently to file an inheritance claim lawsuit is reserved.
In the meantime, let us point out this point as well: if the inheritance is rejected by all of the closest heirs, the inheritance does not pass to the Treasury. In such a case, an official liquidation of the inheritance is performed. After the debts of the estate are paid, the remaining balance is given to these heirs as if they had not rejected it.
It is also possible for the State to be an appointed heir through a disposition mortis causa by the decedent. The State's appointed heirship is not dependent on the condition of there being no other heirs.
What is unworthiness to inherit and what are the reasons for unworthiness to inherit? (Atty. Aylin Esra EREN)
Unworthiness to inherit is the situation where one of the reasons written in the law for the acquisition of the capacity to inherit is absent.
The reasons for unworthiness to inherit are listed in the law in 4 clauses;
1- Those who intentionally and unlawfully kill or attempt to kill the decedent (To give an example: intentionally running over the decedent with a car to kill them or attempting to do so),
2- Those who intentionally and unlawfully render the decedent unable to make a disposition mortis causa (For example: imprisoning the decedent, cutting off their hand or tongue, hypnotizing them, torturing them, etc.),
3- Those who, through fraud, threat, or duress, cause the decedent to make or revoke a disposition mortis causa, or prevent them from doing so (This situation is also a matter for filing a lawsuit for the annulment of the disposition),
4- Those who intentionally and unlawfully destroy or spoil a disposition mortis causa at a time and in a situation where the decedent can no longer remake it.
What is disinheritance (disinheriting from the reserved portion), and what are its conditions? (Atty. Gizem GONCE)
Disinheritance (mirastan ıskat) is a disposition mortis causa. With this disposition, the testator removes a reserved-portion heir from their right to inheritance and their reserved portion.
Disinheritance carries a quality that strengthens family ties and serves to protect them.
Disinheritance must be distinguished from unworthiness to inherit. In both disinheritance and unworthiness, the heir loses their reserved portion and is deprived of it. However, there are differences between them. The main difference is that unworthiness takes effect automatically, whereas for disinheritance to exist, it is a requirement that the testator has made a disposition mortis causa regarding it. Additionally, there are differences between the causes that lead to unworthiness to inherit and the causes for disinheritance.
The conditions for disinheritance are listed in 4 clauses;
1- It is a requirement that the heir has committed a culpable act for the decedent to disinherit a reserved-portion heir. If the heir lacks the power of discernment, their culpability cannot be in question, and thus no grounds for disinheritance can occur. Conversely, restricted persons with the power of discernment can be culpable and can be disinherited.
2- The act of the disinherited heir that necessitates the disinheritance must be unlawful. In the presence of lawful acts and behaviors, no grounds for disinheritance occur.
3- The act that constitutes the grounds for disinheritance must be a serious offense. Seriousness here is not determined based on objective criteria or provisions in the penal code. Instead, the effect the committed act has on the testator is taken into account by keeping family relations in view.
4- It is a requirement that the disinheritance be made in the form of a disposition mortis causa.
Is it also possible to disclaim (refuse) the inheritance? (Atty. Aylin Esra EREN)
The disclaimer of inheritance is the declaration of intent by a legal or appointed heir not to accept the inheritance that has passed to them.
The disclaimer of inheritance can only be in question after the right of inheritance has passed to the heir. It is not possible to disclaim the inheritance while the decedent is still alive. However, an inheritance waiver contract can be made in such cases.
The disclaimer of inheritance is regulated in the law in 2 ways. The first is refusing the inheritance with an explicit declaration of intent. The second is that the decedent's insolvency is explicitly obvious or has been officially determined.
Finally, could you inform our viewers about wills and inheritance contracts? (Atty. Gizem GONCE)
A will is a unilateral legal transaction by the decedent mortis causa. Here, only the testator's declaration of intent is of importance, and its validity is not dependent on the acceptance of the other party.
An inheritance contract, unlike a will, is a bilateral legal transaction mortis causa. The legal consequence arising from this is that the contract cannot be revoked unilaterally.
In a will, the testator can freely revoke their will at any time. In an inheritance contract, however, the testator bound by it has their freedom of disposition restricted.
What would you like to say regarding inheritance law? (Atty. Aylin Esra EREN) (Atty. Gizem GONCE)
Inheritance law is a field of law that shows to whom a person's assets will belong after their death and ties this to a legal rule.
To explain briefly, inheritance law is the entire set of rules and provisions that regulate the passage of a deceased person's estate—that is, their assets, rights, receivables, and debts—to living natural and legal persons.
By its nature, inheritance law strengthens the right of ownership and ensures that the items and assets a person owns pass to the desired people after their death.
If there were no inheritance law, the right of ownership would lose its importance and would be a half-right.
Various interests are tied to inheritance law in terms of life relations. The most important reason why this subject is regulated down to the finest detail is the protection of the rights of interested parties, namely the decedent, the heirs, the creditors of the decedent, and the State. In this vein, I recommend that individuals follow their cases accompanied by lawyers who are experts in this field so as not to suffer any loss of rights regarding inheritance law. Every loss of rights you experience will cause the generation that comes after you to also suffer a loss of rights.