The mechanism of transmission of inheritance related to foreigners to heirs in Turkey
In recent years, Turkey has witnessed a significant increase in the number of foreigners coming to reside on its lands, which has resulted in an increase in the number of those obtaining Turkish citizenship as well. There is no doubt that residing in Turkey and obtaining its citizenship has raised questions about the courts empowered to consider many different issues related to family, inheritance and others, and about the countries whose law is adopted when considering these cases.
In this article, we list to you the mechanism for the transfer of movable and immovable funds, financial assets in banking banks and other assets and property belonging to a foreigner who died in Turkey or who obtained its citizenship, to his heirs after him.
According to the relevant clause in private international law, “inheritance follows the national law of the deceased person.” Accordingly, the persons entitled to inheritance are determined, and the proportions of their inheritance rights under the national law of the country of the bequeathed person. However, the other paragraphs of the said legal clause contain rules that constitute an exception to the first paragraph mentioned above. According to these exceptions, "Turkish law is the one approved in dealing with immovable property of the inherited alien." This provision is an order (and not merely a recommendation). As for the movable property of the estate, it is subject to the national law of the country of the bequeather. In this case, a lawsuit can be filed within Turkey, but the ruling is established according to the law of the country of the inheritor in matters related to the movable money in the inheritance. As for the transfer of the inheritance, the inheritance document issued by the Turkish courts grants the heirs of the foreign benefactor the right to inherit his property in Turkey, regardless of whether the estate funds are movable or immovable.
According to the provisions of the Turkish Civil Code, everyone has the right to inherit and be eligible for a will, except for those who are not qualified to inherit. Proceeding from this clause, eligibility for inheritance has been linked to 3 conditions: the heir must be alive upon the death of the testator, be eligible to receive the inheritance, and not bear one of the reasons for deprivation of inheritance.
The Turkish Civil Code does not include any provisions that would deprive a foreign legatee of obtaining an inheritance document. However, the notary public departments must have access to the data of the souls related to this person completely and correctly, in order to issue the inheritance document for him. Due to the lack of access by the justice departments in Turkey to the data of the souls of foreigners completely and correctly because they are kept in another country, the inheritance document is not issued to foreigners with the notary public departments in Turkey. Therefore, foreigners wishing to obtain this must file a lawsuit with the relevant courts in Turkey.
If the inheritance document is required for immovable property, Turkish law is applied, which includes some restrictions with regard to this type of property, which is that if the heir is a foreign person, he must be a citizen of one of the state specified by the President of the Republic, in order to be able to obtain On immovable property through inheritance.
It is not possible to ensure the enforcement of recognition of inheritance inventory documents and soul records issued according to legal bases from the courts or directorates of souls in the country of the inheritor, but they can be relied upon as evidence. Documents that show the relationship between the inheritor and the heir can be issued by the directorates of souls in the country of the foreign inheritor, but these documents do not carry the status of limiting the inheritance issued by the court and/or do not replace it in terms of influence.
As for the judicial decisions issued in this regard, they are considered as undisputed judicial transactions and do not constitute final rulings. Thus, it is not possible to secure enforcement of recognition of these documents by Turkish courts. The mentioned documents are considered invalid in Turkey. Also, in addition to the conditions for obtaining a valid inheritance document, and if the heirs request the transfer of immovable funds to them through inheritance, it is considered whether the heirs are citizens of one of the 183 countries stipulated in the list issued in 2012 by the Turkish Council of Ministers. After the heir, a citizen of one of these 183 countries, obtains a valid inheritance document in Turkey, and completes the necessary procedures with the Tapu Department, he will also complete the procedures for transferring the ownership of immovable funds to the heir, in the relevant records.
However, if the heir does not have the nationality of one of the 183 countries mentioned in the Cabinet list in 2012, he will not be able to obtain the right to inherit from immovable property. In this case, it can be said that the mentioned list of the Turkish Council of Ministers is the determining factor for the heirs of the foreign heir to obtain the immovable funds through inheritance in Turkey. The heirs of the heir holding the nationality of one of the countries whose name is not mentioned in the mentioned list cannot benefit from the right of inheritance except by selling the immovable property that is the subject of the inheritance, and benefiting from its price.
The heir is a Turkish citizen and the heirs are foreigners
There is no legal difference between the legator and the heirs being foreigners, and the legator being a Turkish citizen and the heirs being foreigners. As we have said, under the relevant law, "inheritance follows the national law of the deceased person". According to Turkish law, the fact that the testator or heir is a foreign citizen does not prevent them from obtaining the inheritance. In the event that the legatee was a Turkish citizen and among his heirs at his death were foreign nationals, Turkish law is also in force and approved in the process of these foreign heirs obtaining immovable funds through inheritance. With regard to movable funds, the national law of the country of the bequeather, that is, Turkish law, is adopted. The restrictions contained regarding the inheritance rights of foreigners in the movable property of the inheritance shall be applicable in this case as well.
Courts empowered to look into the matter
The law regulating the authority to consider inheritance cases that contain a foreign element, states that “(1) inheritance cases are considered by the courts of the last region in which the deceased (the legator) resided in Turkey. In the event that the deceased was not in Turkey, the courts are considered In the area to which the inheritance belongs, it is authorized to look into the matter.” According to this, the courts located in the area where the immovable property is located are considered to be empowered to hear cases of inheritance.
Turkish laws are adopted in the mechanism of transferring the movable and immovable funds of a foreign citizen in Turkey, to the heirs, whether the heir died inside Turkey or in another country, because this property was acquired in Turkey.
According to this;
First: An inheritance determination document must be obtained in order to transfer immovable funds in Turkey through inheritance. Based on the decisions of the Supreme Court of Turkey (Yarg?tay), Turkish courts do not recognize determination of inheritance or wills issued by foreign countries. However, these documents can be used as evidence. Therefore, the inheritance determination document must be obtained from the Turkish courts under Turkish laws.
Second: In addition to obtaining the inheritance limitation document (inheritance document) from the Turkish courts, if the foreigner has died outside Turkey, then the death certificate must be obtained and it must explain the “apostille” for the signatory countries to the Hague Treaty, the forensic report and the prosecution documents public, and then submit it to the legal magistrate’s court in the area in which the movable property, subject of the inheritance, is located, or the last area in which the bequeather resided within Turkey. As for foreign nationals of countries that are not signatories to the Hague Treaty, they must have the death certificate certified by the Turkish Consulate in their country.
Third: The procedures and transactions of immovable funds must be completed with the municipality to which it belongs. These procedures include reviewing the tax department in the state or district in which the immovable property is located, and the payment of all taxes and real estate fees and others previously incurred on the property subject of the inheritance, and then the procedures related to property transfer taxes are completed. Subsequently, a document confirming the payment of inheritance and transfer taxes for the property is organized and sent to the Tax Department and the Directorate of Education.
According to Paragraph (3) of Clause (4) of the Turkish Fee Law No. 492, a Tapu fee of not less than 9 per thousand of the total value of the immovable property subject to the transfer by inheritance that has been indicated by the concerned persons shall be collected. After the fees are paid, the Tapu Directorate organizes a new Tapu document for the heirs of the new owners of this immovable property.
Given the large number of papers and transactions related to these procedures, I do not want to go into their details. In this article, I tried to explain the mechanism of the inheritance law for foreigners residing in Turkey or who obtained Turkish citizenship from them. I hope it is useful.