Inheritance law is a law branch that aims to answer the questions regarding to whom, in what proportion and in what order the estate of deceased is going to pass to inheritors. If the deceased or the inheritor is a foreign country citizen or the residence or habitual residence in a foreign country or the testamentary disposition is executed in a foreign country, during the acquisition of the right of inheritance, the law of more than one country get involved and at this point, international private law rules are going to come into play regarding which country's law shall be applied.
In our country, Article 20 of the International Private and Civil Procedure Law (MÖHUK) determines which country's law shall be applied with respect to the transition of the heritage in the relationships that include foreign elements. Article 20 of MÖHUK, which is a general provision, states that "The national law of the deceased shall govern inheritance". In this respect, the issue of determination of the inheritors and the proportions of the inheritors are determined according to the national law of the deceased. However, paragraph 2, 3 and 4 of the same article contain exceptions to the general rule in the first paragraph. These exceptions has been narrowed the application area of the general rule considerably.
Law has been introduced the first exception to the general rule by stating that Turkish law shall be applied to the immovable property located in Turkey of the deceased in the second sentence of the first paragraph of the aforementioned article. In Turkish Law, as regulated in the Article 599 of the Turkish Civil Code, inheritors shall gain the possession and real rights regarding the immovable directly. However, in order for the immovable in the heritage of the deceased to be transferred to the inheritors, some inheritance transfer procedures must be fulfilled. The first transaction required for the heritage to be transferred to the inheritors is obtaining a "certificate of inheritance" by applying to the Civil Court of Peace or the Notary Public to prove their inheritance right and the heirship.
Certificate of inheritance is the document which creates a presumption of law regarding the heirship and inheritance shares of the legal and appointed inheritors on the heritage of the deceased.
The transfer of the movable/immovable in the heritage of the deceased is made according to the ratio of inheritance shares written in the inheritance certificate.
However, the situation is slightly different for foreign citizens. Namely, it is important for a foreign country citizen to specify whether it is demanded a certificate of inheritance about immovable or movable property of the deceased or both when it is applied to competent and authorized Turkish Courts in order to acquire the heritage which is located in Turkey. Since national law of the foreign deceased shall be applied for the certificate of inheritance about movables and Turkish law shall be applied immovable property, two different certificates of inheritance should be issued for the movable and the immovable.
According to second paragraph of the Article 20 of MÖHUK, the opening, acquisition and distribution of the inheritance, as another exception of the general rule indicating the law, are subjected to the law of our country where the estate is located. For this reason, the evaluation of the preliminary issue as the opening of the inheritance shall be made in accordance with the authorized country's law by the rules of MÖHUK. And the acquisition and distribution of the inheritance is evaluated after the result of these preliminary evaluation.
If the immovable heritage is located in Turkey, applicable law is Turkish law. In the other hand, the inheritors shall have the qualification of heirship under deceased's national law in order to successfully acquire the inheritance rights over the foreign deceased's immovable which is located in Turkey. In other words, the issue of being qualified for the inheritance is determined according to the citizenship status of the deceased at the time of death and the legal status of the person requesting the inheritance certificate on the day the deceased died and the inheritance has been opened. There is no provision in Turkish Civil Code that prevents giving certificate of inheritance regarding a foreign deceased. However the civil registry records have to be complete and accurate in order for a certificate of inheritance to be issued by Notaries. Since it is not possible for the Notaries to determine whether the civil registry records of foreign national person kept in a foreign country are complete and accurate, an inheritance certificate is not issued for foreign nationals from the Notary Public.
Another issue that needs to be evaluated at this point is whether the recognition and enforcement of the verdict or the civil registry records, which shows the inheritance relationship between the deceased and the inheritors, issued by the courts or civil registry offices of the country which the deceased is a citizen of, is possible or not. It is regulated in MÖHUK that the decisions of the court of law and the uncontentious judicial decisions can be recognized in our country. Since the civil registry records showing the connection between the deceased and the persons claiming to be heirs issued by the Civil Registry Offices of the country which they are citizens of, does not qualify as a court order and / or document that creates that effect, and the court verdicts given on this matter are valid until the contrary is determined due to its nature, in other words, since these are uncontentious judicial process that does not constitute a definite judgment, these documents are not possible to be subjected to recognition or enforcement in Turkish Courts.
In order to request the certificate of inheritance in our country is only possible by applying to the Court. In addition Even if the person has an inheritance certificate issued by the Turkish courts that showing this person is the inheritor of the foreign deceased, it should be checked whether the person is a citizen of one of the 183 countries listed by the Council of Ministers in 2012 if the person requests acquisition. After the inheritor of the deceased who is a citizen of one of the countries in the list, getting the current certificate of inheritance together with the completion of the necessary procedures in the land registry, the transfer of property right of immovable is going to be completed in the records too.
However, if the deceased is a citizen of a country that is not included in the aforementioned list, the inheritor will not be able to have the property right over the inherited immovable. Then, for the inheritors of a deceased who is a citizen of foreign country, in terms of having ownership over the immovable of the deceased, Council of Ministry's list is determinant instead of reciprocity principle. The inheritance right of the inheritors of a deceased who is a foreign country citizen other than the 183 countries included in the list, occur over the price of the immovable when the immovable is sold as movable.
For the movable property (car, cash in accounts...) in the heritage located in Turkey the national law of the deceased, who is a foreign citizen, shall be applied. Even if the case is filed in Turkey, in matters relating to movable inheritance, judgment is made according to the law of this deceased's country. Again, for acquisition of the movable heritage, certificate of inheritance taken from Turkish Courts is enough for the inheritors of the foreign country citizen deceased.
In the event that the foreign citizen does not have an inheritor, the issue of what is going to happen to the heritage located in our country has been determined within the scope of Article 20/3 of MÖHUK by stating that our State shall inherit estates situated in Turkey that do not have any inheritors.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
