GIZEM GONCE
GİZEM GONCE
Today, we will be talking about inheritance law. Before we start, could you introduce yourself to our viewers watching at home?
Hello, I am Attorney Gizem Gonce. I graduated from Kadir Has University, Faculty of Law. Currently, I am continuing my studies in the Private Law Master’s program with a thesis at Kültür University, specializing in Inheritance Law.
I have gained experience in resolving numerous legal issues by working for many years at leading domestic and foreign law firms and companies in Turkey. Subsequently, I co-founded the Eren & Gonce Law Firm with Attorney Aylin Esra Eren.
Could you please talk about your areas of practice and activities?
Our areas of expertise are primarily inheritance law, family law, corporate law, commercial law, enforcement and bankruptcy law, criminal law, and legal consultancy.
Before we discuss your work regarding inheritance law, could you explain to our viewers watching at home what inheritance law is?
Inheritance law is the entire set of rules that regulates the fate of the transferable rights, debts, and other legal relationships of a person—referred to as the testator—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 post-mortem dispositions people wish to make regarding their assets, how the assets subject to inheritance will be distributed among legal heirs and other heirs upon their death, and in what order their debts will be paid.
In which areas regarding inheritance and guardianship law do you provide support?
Drafting wills,
Lawsuits for the annulment of a will,
Obtaining a certificate of inheritance,
Annulment of a certificate of inheritance,
Renunciation of inheritance,
Lawsuits for the annulment of a decision regarding renunciation of inheritance,
Lawsuits regarding the actual renunciation of inheritance by heirs,
Lawsuits for the dissolution of partnership through the distribution of the estate,
Title deed annulment and registration lawsuits regarding the collusive transfer of assets by the deceased (murisin muvazaası),
Reduction lawsuits (tenkis davası) regarding the claims of forced heirs.
How many types of heirs are there, and how can heirs benefit from these inheritances?
There are 2 types of heirs. First is the legal heir, and second is the appointed heir.
A legal heir is a person who is an heir by law and is specified in the statute.
An appointed heir is an heir designated by the testator through a post-mortem disposition, that is, a will or an inheritance contract. Here, the will and declaration of intent of the deceased are effective. While legal heirship is based on and arises from the law, appointed heirship arises from the intent of the testator.
Appointing a Substitute Heir
If the appointed heirs are unable to receive the inheritance due to death as a result of the given decision, the person leaving the inheritance can appoint one or more persons as substitute heirs in place of the heir who passed away before them.
If there are situations such as waiver of inheritance or renunciation of inheritance other than death, the testator can also designate a substitute heir. There are no restrictions on the testator regarding the appointment of a substitute heir; they have the right to appoint as many substitute heirs as they wish.
Appointing a Successive Heir (Art Mirasçı)
The testator leaves the inheritance to a preliminary heir so that it passes to the person or persons they have designated within a specific timeframe. The preliminary heir has the right to benefit from the inheritance with all its assets or debts; therefore, they are also an heir.
However, while being a co-inheritor, the preliminary heir is also tasked with waiting for the person appointed by the testator and the time specified for the transfer of the inheritance. When the time comes, they transfer the inheritance to the designated person in the manner specified by the testator. This transfer to the person essentially designated by the testator is called appointing a successor heir.
The testator may appoint a preliminary heir in the event of their death, requesting that the inheritance be transferred to a third party. In the event of the testator's death, the person to whom the inheritance is first left is called the preliminary heir, and the person to whom the inheritance is transferred after a specified period or upon the death of the preliminary heir is called the successor heir.
Who are the heirs considered in the 1st, 2nd, and 3rd lines (zümre)?
1st line heirs are the deceased's closest relatives, their descendants. That is, their children, grandchildren, great-grandchildren, and so on.
2nd line heirs consist of the deceased's mother and father, and their descendants—meaning the deceased's siblings, nephews, nieces, and their children/grandchildren.
3rd line heirs consist of the deceased's grandparents and their descendants—that is, the deceased's uncles, aunts, and their descendants.
So, who are the forced heirs (saklı paylı mirasçılar)?
As a rule, the testator has the power to dispose of their assets as they wish; however, the law protects a portion of the inheritance share for descendants, parents, and the spouse. The forced share (saklı pay) is the portion of the inheritance share granted to the legal heir that the testator cannot dispose of. The testator can only dispose of the portion remaining outside of these forced shares.
Heirs whose forced shares are violated have the right to file a reduction lawsuit (tenkis davası) to claim their forced share. With the legal amendment made in 2007, the forced share of siblings was abolished.
Forced share rates are regulated in the law as follows:
- For descendants, half of the legal inheritance share,
- For each parent, 1/4 of their legal inheritance share,
- For the surviving spouse, the full legal share if inheriting alongside descendants or the parents' line; in other cases, 3/4 of the legal inheritance share.
How does divorce affect heirship?
Divorced spouses cannot be each other's legal heirs.
Post-mortem dispositions made by the testator in favor of their spouse via a will also become void if a divorce subsequently occurs. However, the testator may order otherwise in their post-mortem disposition. That is, they can state the validity of the will even in the case of divorce. Conversely, if the court has ruled for separation rather than divorce, the surviving spouse retains their legal right of inheritance. This is because the marriage relationship has not ceased to exist.
An important issue regarding this arises in cases where a divorce lawsuit has been filed but one of the spouses dies before it concludes. In this case, the spouse is a legal heir. Because the marital relationship and, therefore, the spouse's legal heirship continue until the divorce decree becomes final. If one of the spouses dies during this time, the surviving spouse remains an heir. Here, the marriage ends not by divorce, but by death.
When and in what situations does the State become an heir?
According to Turkish law, if there are no heirs in the first 3 lines and the testator has not appointed an heir through a post-mortem disposition, the State acquires the inheritance in the capacity of a legal heir.
If it is unknown whether the testator has any heirs or if all heirs are not known, the Magistrate Judge makes an announcement twice at 1-month intervals, calling upon claimants to report their heirship status within 1 year starting from the final announcement. If no one applies within this period and the Judge cannot identify any heirs, the inheritance passes to the State. In this case, the right of an heir who may appear later to file an inheritance recovery action (miras sebebiyle istihkak davası) is reserved.
Meanwhile, let us point out this point: if the inheritance is renounced by all the closest heirs, the inheritance does not pass to the Treasury. In such a case, an official liquidation of the estate is carried out. After the debts of the estate are paid, the remaining balance is given to these heirs as if they had not renounced it.
It is also possible for the State to be an appointed heir through a post-mortem disposition by the testator. The State's appointed heirship is not dependent on the condition that there are no other heirs.
What is unworthiness to inherit, and what are the grounds for unworthiness?
Unworthiness to inherit is the situation where one of the grounds written in the law for gaining the capacity of heirship is not present.
Grounds for unworthiness to inherit are listed in 4 clauses in the law;
1- Those who intentionally and unlawfully kill or attempt to kill the testator (For example, intentionally running over the testator with a car to kill them or attempting to do so),
2- Those who intentionally and unlawfully render the testator incapable of making a post-mortem disposition (For example, imprisoning the testator, cutting off their hand or tongue, hypnotizing or torturing them),
3- Those who, through fraud, threat, or duress, enable the testator to make or revoke a post-mortem disposition, 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 post-mortem disposition in a situation or at a time when the testator can no longer redo it.
What is disinheritance (mirastan ıskat), and what are its conditions?
Disinheritance (ıskat) is a post-mortem disposition. With this disposition, the testator removes a forced heir from their right of inheritance and forced share.
Disinheritance serves to strengthen family bonds and protect them.
Disinheritance must be distinguished from unworthiness to inherit. In both disinheritance and unworthiness, the heir loses their forced share 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 condition that the testator has made a post-mortem disposition regarding it. Furthermore, there are differences between the grounds that give rise to unworthiness and the grounds for disinheritance.
The conditions for disinheritance are listed in 4 clauses;
1- In order for the testator to disinherit a forced heir, the heir must have committed a wrongful act. If the heir lacks the capacity to discern, their fault cannot be in question, and therefore, a ground for disinheritance cannot arise. Conversely, restricted persons who have the capacity to discern can be at fault and can be disinherited.
2- The act of the disinherited heir that necessitates disinheritance must be unlawful. In the presence of lawful acts and behaviors, a ground for disinheritance does not arise.
3- The act that is the ground for disinheritance must be a serious crime. Here, seriousness is not determined according to objective criteria or provisions in the penal code. However, the impact of the committed act on the testator is taken into account by considering the family relationship.
4- It is a condition that the disinheritance is made in the form of a post-mortem disposition.
Is it also possible to renounce the inheritance?
Renunciation of inheritance is the declaration of intent by a legal or appointed heir not to accept the inheritance that has passed to them.
Renunciation of inheritance can only be in question after the right of inheritance has passed to the heir. It is not possible to renounce the inheritance while the testator is still alive. However, in such cases, an inheritance waiver contract can be made.
Renunciation of inheritance is regulated in the law in 2 ways. The first is renouncing the inheritance through an explicit declaration of intent. The second is that the testator’s insolvency is clearly evident or officially determined.
Finally, could you inform our viewers about wills and inheritance contracts?
A will is a unilateral post-mortem legal transaction of the testator. Here, only the testator's declaration of intent is important, and its validity does not depend on the acceptance of the other party.
An inheritance contract, unlike a will, is a bilateral post-mortem legal transaction. 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 freedom of disposition of the testator who is bound by it is limited.
As we conclude our chat, what would you like to say regarding the subject of inheritance law?
Inheritance law is a field of law that indicates who will own a person's assets after their death and binds this to legal rules.
To explain briefly, inheritance law is the sum of rules and provisions that regulate the transition of the assets of a deceased person—that is, their goods, rights, receivables, and debts—to living natural and legal persons.
By its nature, inheritance law strengthens the right of ownership and ensures that items and goods owned by a person pass to the desired individuals after their death.
If there were no inheritance law, the right of ownership would lose its importance and become a partial right.
Various interests are tied to inheritance law in terms of life relationships. 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 testator, the heirs, the testator's creditors, and the State. In this regard, I recommend that individuals follow their files under the guidance of expert lawyers in this field to avoid any loss of rights regarding inheritance law. Every loss of rights you experience will cause the next generation after you to also suffer a loss of rights.
[20:28] OĞUZHAN GÖKCE (Guest)
Does the filing of a partition lawsuit by one heir before a partition agreement is made prevent the making of a partition agreement?
[20:30] SILA HÜSEYNİ (Guest)
Can one receive a widow's or orphan's pension after renouncing the inheritance?
[20:32] Selin TÜRKER (Guest)
What is the difference between appointing a successor heir and a substitute heir? Happy broadcasting...
[20:41] ABDULLAH KARA (Guest)
After making an oral will, if the existing danger ends but the witnesses who will convey our oral will have already gone to court and stated the situation to the judge, and the judge has made a decision accordingly, on what grounds can we change this situation after the one-month period has passed?
[20:41] AYNUR SAMUR (Guest)
If someone with superior rights appears long after the security period has passed for a person for whom a declaration of absence (gaiplik) has been obtained, should the inheritance be returned in full, or should it be returned in its state at that moment?
[20:49] Ayshan Asgarova (Guest)
Hello, I am participating from Azerbaijan. You explain very well, first of all, thank you very much. My question is: Inheritance law is "Vərəsəlik hüququ" here. Can heirs be those who were alive at the moment the testator died, as well as those who were conceived while the testator was alive and born after their death, regardless of whether these people were their children or legal entities? Is it the same in inheritance law?