WHAT IS INHERITANCE?
WHAT IS AN INHERITANCE?
It is the assets, money, etc., of a person that pass to their heirs upon their death. However, an inheritance does not consist only of assets; the debts of the deceased also pass to the heirs. In other words, we must consider the inheritance as a whole. It is possible to refer to the inheritance essentially as the "estate" (tereke).
WHO ARE THE LEGAL HEIRS?
The system existing in our law for determining who will inherit the assets of the deceased is the "parentelic" (zümre) system. According to this system;
If the deceased's descendants, i.e., children, grandchildren, etc., are alive, the inheritance remains with them. The deceased's ascendants do not receive a share of the inheritance.
If there are no surviving descendants, the inheritance passes to the second parentelic group, i.e., the ascendants. Accordingly, the parents of the deceased, and if they are not alive, the siblings and nieces/nephews of the deceased, become entitled to the inheritance.
If no one from the second group is alive, the inheritance will pass to the third group. That is, it will pass to the deceased's grandparents, and if they are not alive, to their aunts, uncles, and great-aunts/uncles.
If no one from the deceased's family is alive, the inheritance passes to the State.
HOW IS A SPOUSE'S RIGHT OF INHERITANCE DETERMINED?
The deceased's spouse is not included in the parentelic system explained above. Therefore, the spouse's right of inheritance is regulated separately by law. According to the legal regulation, the deceased's spouse will have a right to the inheritance at the rates determined by law, depending on which parentelic group they are inheriting with.
DOES A SPOUSE WITHOUT AN OFFICIAL MARRIAGE CERTIFICATE HAVE A RIGHT OF INHERITANCE?
The most important condition for a spouse to obtain a right of inheritance is that a marriage has been established between them and the deceased with an official marriage certificate in the sense of the Turkish Civil Code. It is not possible for a person without an official marriage certificate to inherit in this respect. A person who does not leave an inheritance to a partner without an official marriage certificate may include such partner in the inheritance as an appointed heir through testamentary dispositions.
WHAT IS THE INHERITANCE SHARE AND HOW IS IT DETERMINED?
Inheritance distribution rates are determined by the provisions of Article 495 and subsequent articles of the Turkish Civil Code (TMK). Accordingly;
If the deceased's descendants are alive, the surviving spouse receives 1/4 of the inheritance. The remaining portion is divided equally among the children. If any of the children are deceased, their share passes to their own children, i.e., the grandchildren of the deceased. If the deceased's child has no children, the distribution is made among the other heirs without considering that heir.
If the deceased has no descendants, the surviving spouse receives 1/2 of the inheritance. The other 1/2 portion is divided between the parents of the deceased. If one of the parents is not alive, the living parent receives half of the 1/2 portion. The remaining 1/2 is distributed to the siblings of the deceased. If neither parent is alive, 1/2 of the estate is distributed to the siblings of the deceased.
If none of these people are alive, the inheritance share will be distributed to the 3rd group, i.e., the grandparents. Here, the spouse receives 3/4 of the estate. The remaining 1/4 is distributed equally among the uncles and aunts in line with the logic explained above.
If no one from the parentelic groups is alive, the spouse inherits the entire estate.
WHAT IS A CERTIFICATE OF INHERITANCE AND HOW IS IT OBTAINED?
The document that shows who the heirs are upon the death of the decedent and what percentage of the inheritance each heir is entitled to is called a certificate of inheritance (veraset ilamı). A certificate of inheritance can be obtained by any heir by applying to the Civil Court of Peace or a Notary Public.
ARE HEIRS RESPONSIBLE FOR THE DEBTS OF THE DECEASED?
As a rule, heirs are unlimitedly responsible for the debts of the deceased with their personal assets. This responsibility begins with the death of the deceased; after the distribution, the heirs continue to be jointly and severally liable with all their assets.
HOW IS THE INHERITANCE DISTRIBUTED?
Inheritance distribution rates vary among legal heirs according to the presence of the deceased's surviving spouse at the rates specified in the law. Other heirs receive equal shares of the inheritance. To explain with an example: if there is a surviving spouse and 3 children as legal heirs, the surviving spouse is entitled to 1/4 of the inheritance, and each of the children is entitled to 1/4 of the inheritance. In another example, if there is a surviving spouse and 2 children as legal heirs, the surviving spouse is entitled to 1/4 of the inheritance, and each of the children is entitled to 3/8 of the inheritance. If the spouse is deceased, the entire inheritance will be distributed among the children.
WHAT SHOULD BE DONE IF A DISPUTE ARISES REGARDING INHERITANCE DISTRIBUTION?
After the death of the deceased, the inherited assets pass to the heirs. The inheritance shares of the heirs are determined by law. In some cases, disagreements arise among the heirs. Following the death of the decedent, if a dispute arises among the heirs regarding the distribution of the inheritance, a lawsuit must be filed. This lawsuit can be filed by any one of the heirs or by all the heirs together.
DOES A CHILD BORN OUT OF WEDLOCK HAVE A RIGHT OF INHERITANCE?
In terms of inheritance shares, there is no difference between a child born out of wedlock and a child born within wedlock. A child born out of wedlock will benefit from the inheritance within the framework of the provisions explained above.
DOES AN ADOPTED CHILD HAVE A RIGHT OF INHERITANCE?
If the deceased has adopted someone, the adopted person also becomes an heir. However, this inheritance is different from other inheritances and is one-sided. While the adopter cannot inherit from the adoptee, the adoptee becomes an heir to the adopter. At the same time, the adopted child can only be an heir if the deceased themselves performed the adoption. For example, if the adopter's father dies and the adopter is not alive, the adopted child cannot inherit as if they were a grandchild.
DOES AN UNBORN CHILD IN THE WOMB HAVE A RIGHT OF INHERITANCE?
In our law, a baby in the womb is called a fetus (cenin). For the fetus in the womb to be a rights holder and an heir, it must be born alive. If the spouse is pregnant at the time the deceased dies, the fetus becomes a rights holder in the estate like the other siblings, even though it has not yet been born. In this case, the birth of the baby must be awaited for the distribution of the inheritance. If the baby is not born alive, the inheritance distribution will be carried out as if the baby never existed.
DOES THE RIGHT OF INHERITANCE CONTINUE IN CASE OF DIVORCE?
Divorced spouses can no longer inherit from each other upon death once the divorce decree becomes final. However, through testamentary dispositions, for example, a will, it can be ensured that a divorced spouse has a right to the inheritance.
WHAT PATH CAN BE TAKEN IF DEBTS CONSTITUTE THE MAJOR PART OF THE REMAINING INHERITANCE? (REJECTION OF INHERITANCE)
In this case, heirs can resort to the rejection of the inheritance, which is regulated by the Civil Code. An heir who does not want to accept the inheritance must exercise their right to reject it within 3 months; this is a preclusive time limit. This period begins for legal heirs from the date they learn of the deceased's death, unless it is proven that they learned of their status as heirs later; for heirs appointed by will, it begins from the date the deceased's disposition is officially notified to them. Rejection of the inheritance can be made to the Civil Court of Peace by an oral or written declaration, provided that it is unconditional and unqualified. If the inheritance is insolvent, the inheritance is considered rejected by law. If the deceased's insolvency was clearly evident or officially determined at the time of their death, the inheritance is deemed rejected.
CAN ONE HEIR PERFORM A DISPOSITION TRANSACTION ON THE INHERITANCE WITHOUT THE CONSENT OF THE OTHER HEIRS?
It is not possible for one of the heirs to perform any transaction on the inheritance without the consent of the others, unless otherwise specified by law. As expressly regulated in the law, joint ownership (elbirliği mülkiyeti) is formed over the assets left by the deceased to the heirs. In joint ownership, the partners do not have defined shares, and each of their rights extends to all the assets included in the partnership. The owners of the joint ownership are equally and jointly owners of a property in every respect. Unless there is a contrary provision in the law or the contract, the partners must make decisions unanimously for both management and disposition transactions. In other words, a common decision of all owners is required for the administration of this property.
WHAT IS THE FORCED SHARE OF HEIRS?
The forced share of heirs refers to the portion of the inheritance that the deceased cannot dispose of when making a will to make testamentary dispositions. Forced shares exist for legal heirs. The inheritance right of an heir with a forced share regarding that forced share cannot be eliminated in any way. According to Article 506 of the Civil Code, the forced shares of legal heirs are as follows:
For descendants: 1/2 of their legal inheritance share.
For each parent: 1/4 of their legal inheritance share.
For the surviving spouse: If inheriting together with the descendants, parents, or grandparents groups, the forced share is their entire legal share; in other cases, it is 3/4 of their legal inheritance share.
WHAT IS A REDUCTION ACTION (TENKİS DAVASI)?
A reduction action is a type of lawsuit filed by heirs whose forced share has been infringed upon, with the aim of having their forced share restored. A reduction action can be brought against donations made by the deceased through an inheritance contract or a will, and in cases specified by law, the return of some donations made before death can also be requested. A reduction action is a lawsuit that can only be filed upon the death of the deceased; it cannot be filed while the deceased is alive.
WHAT IS RECONCILIATION IN INHERITANCE (DENKLEŞTİRME)?
The return to the estate of certain gratuitous assets given by the deceased during their lifetime to some of their legal heirs to the detriment of others is called reconciliation in inheritance (denkleştirme). In this case, the assets in question will be taken into account in the distribution of the estate as if they had never left the inheritance before, and the inheritance will be distributed accordingly. Heirs whose interests have been harmed can file this lawsuit against the heirs who benefited from the assets in question.
WHAT ARE THE DIFFERENCES BETWEEN RECONCILIATION AND REDUCTION?
While the assets subject to reconciliation are returned to the estate in their entirety, assets subject to reduction are reduced only to the extent that they exceed the disposable portion.
Assets subject to reconciliation are only those given by the deceased during their lifetime. Assets subject to reduction are, as a rule, dispositions related to death, although exceptionally, some inter vivos dispositions are subject to reduction.
Reconciliation in inheritance is an institution of inheritance law that can be applied during the distribution phase of the estate. Reduction, on the other hand, is a right that every heir with a forced share can assert within preclusive time limits before or after the distribution.
WHAT IS A PARTITION SUIT (İZALE-İ ŞUYU)?
With this lawsuit, it is intended to end the co-ownership among partners in movable or immovable property subject to shared or joint ownership and to ensure the transition to individual ownership. A partition suit is a multi-party lawsuit that produces similar results for all parties. It is possible for every heir to file and continue this lawsuit.
Partition (İzale-i Şuyu) can be done in two ways:
Partition in Kind: This is the physical division of movable or immovable property. For example, ending co-ownership by dividing a plot of land whose value can be divided into equal parts according to the number of heirs.
Partition by Sale: This is the sale of movable or immovable property through enforcement proceedings and the distribution of the proceeds among the shareholders.
The authorized court in a partition suit is the court where the immovable property is located. The competent court is the Civil Court of Peace.
WHAT IS WAIVER OF INHERITANCE, HOW IS IT DONE, AND DOES IT COVER DESCENDANTS?
A waiver of inheritance contract is a contract regulated by Article 528 of the Turkish Civil Code, in which an heir declares that they renounce their expected right due to the inheritance right that will arise in the future. The heir waives their inheritance right that will remain to them from the deceased in the future. For a valid waiver of inheritance contract, it must be made in writing and officially between the heir and the deceased. It cannot be done verbally. The waiver contract made can be for consideration (with compensation) or gratuitous (without compensation). In a waiver for consideration, the heir obtains a right from the deceased in return for this waiver. This contract cannot be made via proxy; the person must personally accept and sign this contract in the presence of a notary. In waiver contracts for consideration, the waiver also affects descendants unless there is a contrary provision in the contract; however, in gratuitous waiver of inheritance contracts, the waiver will not cover descendants.
WHAT IS DISINHERITANCE? HOW IS IT DONE?
It is possible for the deceased to deprive their heir with a forced share of their inheritance through a testamentary disposition. This path is known as disinheritance (ıskat). Disinheritance only has an effect on heirs with a forced share. There is no need to bar an heir who does not have a forced share from the inheritance. Because the deceased can dispose of the inheritance share of heirs without a forced share as they wish, can donate the inheritance share to someone else, or can show another person as their heir. The conditions for disinheritance specified in the Turkish Civil Code are as follows:
The heir committing a serious crime against the deceased or their relatives.
The heir significantly failing to fulfill their duties arising from family law towards the deceased or their family members.