Transition Of The Inheritance Of Foreign Nationals To Their Heirs In Turkey

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In the event of the death of a foreign national, a certificate of inheritance must be obtained in Turkey for the transfer of his/her assets in Turkey to his/her heirs.
Turkey Family and Matrimonial
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Introduction

In the event of the death of a foreign national, a certificate of inheritance must be obtained in Turkey for the transfer of his/her assets in Turkey to his/her heirs. Pursuant to Article 598 of the Turkish Civil Code ("TCC"), a certificate of inheritance can be obtained from the civil courts of peace or notary offices in Turkey. However, pursuant to the Regulation on the Procedures and Principles Regarding the Issuance of Certificate of Inheritance and Invitation of the Abandoning Spouse to the Common Residence by Notaries, it is not possible to obtain a certificate of inheritance from a notary public in case of the death of a foreign national. Therefore, in such a case, the certificate of inheritance must be obtained from the civil courts of peace.

I. Authorized and Competent Court

Pursuant to Article 43 of the International Private and Procedural Law ("IPPL"), in inheritance cases, the court of the last place of residence of the deceased in Turkey, or if the last place of residence is not in Turkey, the court of the place where the property included in the estate is located, is authorized. However, since the issuance of a certificate of inheritance is a non-contentious judicial matter, it is not considered among inheritance cases.1 Therefore, the authorized court must be determined in accordance with the jurisdictional rules of domestic law pursuant to Article 40 of the IPPL.

Pursuant to Article 384 of the Code of Civil Procedure; in non-contentious judicial proceedings, the court of the place where the person making the request or one of the parties concerned resides is competent. Therefore, in order to request a certificate of inheritance, the court of the place of residence of the person making the request or one of the persons concerned shall be competent. As a rule, there is no absolute jurisdiction in non-contentious judicial matters.2 Therefore, even if the request in question is filed in an unauthorized court, if no objection of jurisdiction is encountered, the procedure needs to be continued in the court where the request is filed.

II. Applicable Law

Pursuant to Article 1 of the IPPL, the applicable law shall be determined in accordance with the provisions of the IPPL. Pursuant to Article 20 of the IPPL, inheritance is subject to the national law of the deceased. However, pursuant to the same article, Turkish law shall apply to the immovable property located in Turkey. In this case, the national law of the deceased shall apply to the movable property of the deceased and Turkish law shall apply to the immovable property of the deceased.3 Therefore, the provisions of the TCC regarding the division of inheritance shall apply to the immovable property.

III. Required Documents

If the deceased is a foreign national, the Turkish authorities does not have a copy of his/her civil registry. In this case, documents from the country of nationality of the person concerned will need to be submitted to the court. Although the documents to be submitted may vary according to the characteristics of the concrete case, it should be understood from the documents submitted that the person concerned has died and who the heirs or the persons who may be heirs under Turkish law are. In this context, for example, the certificate of inheritance obtained from the relevant country may be submitted to the court. In the event of a missing document, it is possible for the court to request this document from the foreign authorities by rogatory processes.

If the state from which the above-mentioned documents are obtained is a state party to the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents dated 1961 ("Hague Convention"), then an Apostille annotation will be required for the relevant documents. However, if the state from which these documents are obtained is not a state party to the Hague Convention, then it will not be possible to obtain an Apostille annotation. In this case, bilateral international agreements between Turkey and the relevant state should be taken into consideration and, in this context, certification procedures should be followed before the Ministries of Foreign Affairs and foreign representative offices, if necessary. It should be noted that Apostille annotation can only be obtained for documents obtained from official state authorities and it is not possible to obtain Apostille annotation for the documents obtained from private institutions.

Conclusion

In the event of the death of a foreign national, a certificate of inheritance must be obtained in Turkey for the transfer of his/her assets in Turkey to his/her heirs. Pursuant to Article 598 of the TCC, a certificate of inheritance can be obtained from the civil courts of peace or notary offices in Turkey. However, in case of the death of a foreign national, it is not possible to obtain a certificate of inheritance from notary offices. Therefore, in such a case, the certificate of inheritance will have to be obtained from the civil courts of peace. In order to obtain the certificate of inheritance, the authorized and competent court and the applicable law are needed to be determined in accordance with the relevant provisions of the IPPL.

Footnotes

1. Ziya Akıncı, Milletlerarası Özel Hukuk, İstanbul, Vedat Kitapçılık, 2020, p. 142.

2. Hakan Pekcanıtez, Medeni Usul Hukuku, İstanbul, On İki Levha Yayıncılık, 2017, p. 2135.

3. Akıncı, ibid, p. 99.

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.

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