Law of succession
I. In General
All systems of law that recognize private ownership of property also recognize that such ownership should pass at the death of the owner to others. The law of succession deals with the passage of a person’s property right at his death. This is expressed in the Turkish Constitution, that ‘every person has the right to own and inherit property’ (Cons., Art 35 I) the details of the law of succession is regulated in the New Civil Code (C.C. Arts 495-682), which basically followed the provisions of the former Civil Code of 1926.
It is a generally accepted rule that, in the absence of an express provision made by a deceased person, this estate will, by operation of law, go to his close relatives upon his death. This is so because of the importance placed on the family and the duty of the members of the family to support each other. Persons are free however, by will or otherwise, to dispose of their property to persons other than their relatives, within the limits permitted by law. A particular indirect limitations placed on the power of disposition is the existence of death duties or inheritance taxes which even in western countries, where the concept of private ownership is most widely recognized, are relatively high.
Under Turkish Law, which is based in the respect on Swiss law, persons are generally free to dispose of their property at their death. They may execute wills. By which they leave their property to such real or legal persons as they choose. This is so called ‘testate succession’ has some limits. Notwithstanding the provisions of a will, close relatives of the deceased are entitled to a certain portion of the estate, called the reserved portion.
In the absence of such disposition, the estate of a deceased person will pass, in the proportions prescribed by law, to his relatives, or if there are none, to the state. This is called ‘intestate succession’
II. INTESTATE SUCCESSION
In the deceased has failed to make a will or otherwise provide for the distribution of his estate at hs death, it will be distributed among his next of kin. For this purpose, the blood relatives of a deceased person are divided into groups which are called parental. The first parental consist of the descendants of the deceased, the second of his parents and their descendant, the third of his grandparents and their descendants. The fourth parental is the state. The rights of a surviving spouse and how they relate to parentals is discussed below.
The following rules apply to the operation of system of parental,
First, as long as one member of a parental is living at the death of the decedent, the more removed parental will be eliminated. Thus, if the deceased leaves one child, parents or grandparents of the deceased, as well as their descendants, will not receive anything. Secondly, among the members of each parental those nearest in any degree will be represented by his or her descendants. For example, if D is survived by one child, a son, he will be his sole successor. But if this son had died before D, then the surviving children of D’s son, but not, for example, D’s parents will take the estate. Thirdly, surviving successors in the same degree of closeness to the deceased in the same parental, participate in the estate equally. Also, there is equality among male and female successors. Therefore, if D dies in state, leaving two sons and one daughter, each of them will receive one third of the estate. If one of the sons had predeceased D, leaving two children, his share will go to them, entitling each to one sixth of the whole estate.
B. Other Persons who may Inherit
1. Children Born Outside of Marriage
Children born outside of marriage have the same rights of inheritance from their mother as other children. Those children recognized by their father or whose paternity is established by a court may inherit from their father, equally to the children who were born within the marriage. For example, when a man leaves two children born within the marriage and one, for example, recognized child, each will receive 1;3 of the estate. The former rule entitled the child only one half as much as a legitimate child, had already been found by the Constitutional Court against the equal treatment clause of the Constitution. The new Civil Code explicitly declares the equality (C.C., Art 498)
2. Adopted Children (C.C., Art 500)
Adopted children are treated the same as the legitimate natural born children of the deceased. Therefore they receive the same amounts as the other children of the deceased. The adoptive parent will, however, not take from the adopted child’s estate if the predeceases them (C.C., Art 500 I). An adopted child may be an intestate successor of his natural parents and may thus inherit from both his adoptive and real parents.
3. The Surviving Spouse (C.C., Art 499)
The surviving spouse shares the estate with the living blood relatives of the deceased, if any. Her or his portion varies according to the closeness of the other successor of the deceased with whom she or he has to share the estate. If there are close relatives, such as children, the surviving spouse receives less; of there are only distant relatives she receives more. For example, if the surviving spouse inherits together with the descendants of the deceased, she gets one fourth of the estate. If the surviving spouse takes with the second parental, she receives ownership of one-half of the estate. If she takes with grandparents of the deceased she gets ownership of three-fourths of the estate. If there is no grandparent, she becomes the sole legal successor ad takes the whole estate.
III. TESTATE SUCCESSION
A person may dispose of his property as of his death within the limits of reserved portion, by executing during his lifetime a will or by entering into an agreement of inheritance.
A will may be defined as a unilateral legal transaction expressing the intention of a person, made according to the conditions required by law, which becomes effective as of the death of the person. The subject matter of a will may not be limited to the disposition of property. Thus, by this will, a person may also recognize his child. (C.C., Art 295)
In order to execute a will a person must have capacity to make fair judgments. Any person who has completed the age of 15 is deemed to have capacity to make a will, if he is able to make fair judgments (C.C., Art 502). This differs from the normal age at which one has capacity to enter into transactions. Mistake, fraud or duress makes a will void (C.C., Art 504)
A will must be in a form required by law. It may take the following forms;
(a) The authentic or official will. This is a will which is prepared by an official such as a notary or a Peace Court judge pursuant to the directions of the testator. The testator then reads the next and accepted its contents by signing it. Thereafter, the will is dated and signed by the official himself. Finally, the testators, in the presence of two witnesses expresses that he has read the text and that it is his last will. The witnesses also sign the statements on the will they found the testator capable of executing the will and that he accepted in their presence its contents.
If the testator is not able to read, the text is read to him by the official in the presence of witnesses. When it is proved by him, he will sign it. It he is unable to sign, then it is signed by the officials and by two witnesses.
Such an authentic will is preserved at the office of the notary or Peace Court judge, and a copy may be given to the testator at his request.
Such an authentic will provides security in that it is less likely that such a will be declared void after the death of the testators, as is frequently that case with other form of wills. Another advantage of an authentic will is that it may be made by a person who is unable to read or write. On the other hand, the authentic will entails notarial expenses and does not have the privacy of the holographic will.
(b) The holographic will (C.C., Art 538). The holographic will is completely written by the testator himself. It must also includes the place of preparation and the date, again in his own handwriting, and it must be signed by the testator himself. Even a letter, if it meets these requirements and clearly shows the intention of a person, may constitute a valid holographic will.
It is easy to prepare a holographic will. It may be prepared anywhere, and it enables a person to keep the contents of his will secret. It does not require any witnesses. But it may be rebutted with the assumption that the testator was mentally incapacitated at the time when he signed the will.
(c) The oral will (C.C., Art 539) only in exceptional circumstances, when it is impossible to execute an authentic or holographic will, will an oral will be considered valid. Thus, for example, a soldier in the battle field may make an oral will. Here the testator must express his will to at least two witnesses who must in turn write out and sign the will as soon as possible and submit it to a court, expressing that the testator was capable of making his will and that it was make under extraordinary conditions.
3. Revocation of Wills (C.C., Art 542)
Since the execution of a will is a unilateral transaction made without the approval of other persons, the testator may revoke his will is one of its essential characteristics, and the testator cannot before his death deprive himself of the power to revoke it.
A will may be revoked in several ways. It is revoked by making a new will. If the new will is in consistent with the former one, it replaces the earlier will. The new will need not to be in the same form as the earlier. For example, an authentic will may be revoked by a holographic will. A new will which is only supplementary to an existing will and only partly alters the existing one without revoking it entirely, is called a codicil.
Other ways of revoking a will in whole or part are by burning, tearing or other-wise destroying it intentionally, or unintentionally, if it in the latter instance its contents cannot be otherwise proved or by crossing out or otherwise cancelling all or part of a will. The disposition by the testators in his lifetime of an article of property specifically bequeathed in a will constitutes a partial revocation of the will that is to say with respect to such bequest.
Beneficiaries designated in wills are called legatees. There are two sorts of legatees;
a. Universal legatees: receive all or a fraction of the estate, and like statutory or intestate successors, they may be obliged to pay the debts of the estate. There may be several universal legatees.
b. Particular legatees: particular legatees are the recipients of specific bequest of legacies, that is to say, a specific article of property, say a certain watch, all the testator’s furniture etc., or a sum of money.
5. Conditions and Charges
A legacy may be left subject to a condition or charge (C.C., Art 515) the legatee receives a legacy, but is under the obligation of performing some act, such as the repair of a building or helping needy students. In the case of such a condition, the legatee may not acquire the property until the fulfillment of the condition. For example if A bequeaths his house to his cousin B on the condition that B completes his university education successfully and receives his degree, B may not demand the delivery of the house until he received the degree.
6. Appointment of Executer
A. A testator may appoint in his will one or more executers to carry out his will (C.C., Art 550). The executer, in order to carry out the will, must administer the estate, pay its debts, and distribute the remainder of the estate as directed by the will or otherwise required by law. (C.C., Art 552)
Executers are subject to supervision by judges of the Peace Court and may be dismissed by them.
B. Agreement of Inheritance (C.C., Art 557 ff.)
A testator may, instead of making a will, enter with another person into an agreement of inheritance. For example, a husband and wife may conclude an inheritance agreement under which they appoint their son as the ultimate successor to both their property. Unlike a will, the agreement of inheritance is not a unilateral disposition, but a bilateral contact. As a consequence, its makers are, to a certain extent, bound by agreement and the agreement is not revocable unilaterally by either of the parties. They may, however, by mutual agreement, terminate the agreement of inheritance. If the beneficiary of the agreement acts against the testator, the testator may unilaterally terminate the agreement as to such beneficiary (C.C., Art 545)
IV. RESERVED PORTION
A testator is not wholly free to dispose of his entire estate as he pleases. The law limits his freedom in favour of his close relatives, by means of the ‘reserved portion’. This portion is reserved for certain relatives of the deceased. Not all persons who would be entitled to inherit by intestate succession have reserved portions. Only the descendants, fathers and mothers, brothers and sisters and the surviving spouse have rights to such a portion. The amount of the reserved portion depends on the closeness of the surviving heirs to the deceased. The new Civil Code has decreased the extent of the reserved portion and expanded the amount of free disposal by the deceased person.
(1) Descendant: their reserved portion is half of their statutory share. Thus, if the amount of the estate to be distributed is , for example, 80 billion TL, and if four children are the successors, the intestate share of each would be one fourth or 10 billion TL.
(2) Parents: their reserved portion is one fourth of their statutory share.
(3) Sisters and brothers: their reserved portion is one eight of their statutory share.
(4) Spouse: If there are descendants or parents and descendants of the deceased, the reserved portion is the entire amount of his or her right in estate. In all other instances, the reserved portion is three fourth of the statutory share (C.C., Art 506)
B. Reduction of Disposition (C.C., Art 560 ff)
The value of the estate is determined at the time of death (Art. 507) If the disposition made by the testator’s will exceed the amount left after the reserved portions, such dispositions will be reduced. Dispositions made during the testator’s lifetime are also subject to reduction in certain circumstances.
C. Debarment from Inheritance and Loss of Inheritance Rights
A successor of the deceased who commits a felony against the decedent or his next of kin or close friends, or negligently fails in fulfilling a statutory duty to the decedent during his lifetime or to his family may be debarred from inheritance by a testamentary disposition of the deceased (C.C., Art 510) . The share of such a person will pass to the other successors of the deceased as if the debarred person had died prior to the decedent (C.C., Art 511)
In some cases, such as where the successor intentionally kills or attempts to kill the decedent, he loses his inheritance rights automatically (C.C., Art 578)
V. TRANSFER OF ESTATE
The mechanics of inheritance is one of the main concerns of the law of succession. Under Turkish law, the property of the deceased passes to his heirs in the case of intestate succession, or to his legatees in the case of a will, at his death. But who are these persons? They may not be living in the same house, or even in the same town or country. If the deceased executed a will during lifetime, this must be discovered and the validity of the will be determined.
These matters may take more than an few days to be resolved. During this time somebody must care for the assets of the deceased; the household of the deceased must have money to buy food, pay the rent and other expenses, and the business of the deceased, if any, must be run. If the deceased had debts, by whom and who will they be paid? The law of succession provides the answers to these questions by means of the principles discussed below;
B. Universal Succession
The most important principle of the Turkish law of succession is the principle of ‘universal succession’, by which is meant on the death of a person his entire property passes immediately and automatically to his universal legatees or heirs. Such persons become the owners of all property or its whereabouts. As per specific legatees under a will, they have the right to demand the delivery of their specific bequest from the heirs or universal legatees (C.C., Art 600)
C. Legal Status of the Heirs Prior to the Partition of Estate
If there is more than one heir, the estate becomes the common property of all of them until the partition of the estate. The heirs (also the legatees, (C.C., Art 599 I, 600) from a ‘community of heirs’ (C.C., Art 640). All of them must act together, as in the case of co-ownership, and no one of them is entitled to dispose of a single article of a property in the estate, which are made individually, without the approval of the others, are void, expect in the case of acquisition by bona fide third persons. Suits by the estate must, as a rule, be brought in common, and suits against the estate must state the names of all successors as defendants. The heirs have no statutory power to represent each other. However they may give such power of representation to one if the heirs. The creditors of any one of the heirs must wait until the partition of the estate and may not levy on any property in the estate (C.C., Art 642).
Administrative acts with respect to the estate, however, require only the approval of the majority of the heirs and for the preservation of the estate each heir may take necessary protective measures himself. If an executor or administrator is appointed by the deceased or court, then the estate will be administered by such person for the benefit of the successor and creditors of the estate.
D. Determination of Heirs
Although the physical partition of the estate may be affected by the heirs themselves, the estate determines who the heirs are.
Upon the application of an heir (or legatee), the Peace Court of the last domicile of the deceased determines who the eligible heirs (or legatee) are and their shares in the estate and issued a certificate of inheritance (C.C., Art 598)
The same court will initiate the necessary steps for the protection of the estate (C.C., Art 589). Thus, if any of the heirs in under guardianship, or absent, or if any of the heirs demands it, or in order to prevent someone absconding with property, the judge may order all the property of the estate put in a room, lock it under seal, or have an inventory made of the property including in the estate.
In cases where one or more of the heirs is abroad, and does not have a representative to act in his name, or if there are doubts as to the existence of other heirs (C.C., Art 592), the judge may order official administration of the estate. If the deceased has named an executer in his will, such person will be empowered by the judge to administrate the estate. If the deceased had a guardian, this person will be appointed to continue administering the estate of the deceased.
E. Debts of the Estate
Under the rule of ‘universal succession’ all rights and liabilities of the deceased pass to the heirs at the time of death. The heirs are successors not only to the assets of the deceased person, but also to his debts. Moreover, the heirs are fully liable for the debts, although exceeding the value of the estate’s assets, to the extent of their personal wealth. (C.C., Art 699). An heir may, however, disclaim his share of the estate within three months of the date he learns of the death of the deceased. The heirs may also demand official liquidation of the estate when none of them s prepared to take the estate.
1. Official Inventory
If there is a question whether the debts exceed the assets, the heir may ask the judge within one month after the date of death to have an official inventory made (C.C., Art 619). All creditors are asked to state their claims within a certain period of time which should not be less than one month (C.C., Art 621). The inventory of assets and debts is then open for inspection for at least one month (C.C., Art 623). If the heirs accept the estate on the basis of this inventory, they will not be liable for debts of the estate not shown in it.
Where the state takes an estate, for lack of heirs, its liability does not exceed the amount which it receives. (C.C., Art 631)
2. Official Liquidation (C.C., Art 632 ff.)
If the heirs think that the debts of the estate are more than the assets, they may demand, within the three months during which they are entitled to disclaim the estate, an official liquidation of the estate. In this case, the estate of the deceased is kept separate from the properties of the heirs and they will not be liable for the debts require it, may also demand an official liquidation.
The official liquidation is directed by the judge of the Peace Court or by a liquidator appointed by him (C.C., Art 634)
F. Disclaimer of Inheritance
Although the estate passes automatically to the heirs of the deceased, and they become heirs common, they are, as noted above, entitled to disclaim the estate. In case of disclaimer, the estate passes to the next closest relatives of the deceased, who in turn may also disclaim the estate (C.C., Art 611). If all successors disclaim, then the state becomes the sole successor being liable for the depts. of the estate up to the amount which id received.
VI. PARTITION AND DISTRIBUTION OF THE ESTATE (C.C., Art 640 FF.)
A. Distribution by the Heirs
After the debts of the deceased have been paid and his last will otherwise fulfilled, the estate will be distributed among the heirs. The heirs agree among themselves how this should be done. Property may be distributed. If there is immovable property, such as land or a house in the estate, written approval of all heirs is necessary (C.C., Art 676 III)
B. Distribution by the Court
If the heirs cannot agree, or if a creditor requests it, a suit may be brought in court for the distribution of the estate. The law governing distribution by the court (C.C., Art 649 ff) includes certain provisions regulating the partition of those goods which have historic values for the family or agricultural lands. Under the new Civil Code the surviving spouse has a special right to demand the family property and the ownership of the house in which the spouses were living together (C.C., Art 652).