Thanks to its unique location, Turkey is one of the few countries where seasonal changes are pretty balanced and people can experience four (4) different seasons. Moreover, Turkey has become a centre of attraction for foreigners with its rapid development in recent years. Foreign investors are interested in Turkey, especially in real estate and commercial takeovers. Hence, Turkish legislation has been updated to minimize risks and to prevent possible disputes in legal transactions. We are writing this article to briefly explain the procedures, which could be helpful before entering into a time-consuming process:
1. Acquisition of Property by the Heirs
- Heirs must provide proof of the heritage/linkage (e.g. burial papers, hospital reports, minutes prepared by law enforcement officers, other documents issued by the population and citizenship affairs units of foreign countries, etc.) to prove their relationship and family ties on grounds of consanguinity and accordingly to be eligible for the acquisition of the heritage left by dearly departed ancestors. Documents obtained from departments, agencies, and public bodies of foreign countries must be officially translated into Turkish by a sworn translator and apostille must be attached to these documents.
- To acquire a property of the inheritor, an inheritance declaration is required to be issued for both immovable and movable properties regardless of their nature are tangible or intangible. Inheritance declaration concerning an immovable property will be issued in accordance with Turkish law. On the other hand, the inheritance declaration regarding a movable property should be issued according to the national law of the inheritor. If the inheritors request a declaration of inheritance for both movable and immovable properties, they should report this to the respective competent court. In principle, since there will not be a counterparty in a lawsuit solely related to the request for a declaration of inheritance, the pertinent lawsuit type is subject to ex-parte proceedings. Therefore, the claimant(s) almost always is advised to file a lawsuit without an adversary. However, if there are parties who oppose the title of inheritance and claiming a share in the inheritance of the claimant(s), it is of course possible to list an adversary in a lawsuit concerning the issue of the declaration of inheritance. We kindly note that it is a common mistake that the Claimant(s) list the Ministry of Treasury and Finance of the Republic of Turkey as an adversary in such lawsuits. This is a mistake because the inheritance of the pertinent deceased person who passed away without leaving an heir, stemming from Article 501 of Turkish Civil Code numbered 4721, cannot be said of the state's acquisition by force.
2. The International Jurisdiction of Turkish Courts on Inheritance Lawsuits with a Foreign Element
- The international jurisdiction of Turkish courts in relation to inheritance lawsuits with a foreign element must be determined in accordance with Article 43 of the Law numbered 5718 (Act on Private International and Procedural Law). According to Article 43, the lawsuits related to inheritance shall be heard by the court, where the deceased had his/her last domicile in Turkey. However, if his/her last domicile was not in Turkey, it shall be heard by the court of the place where his/her property is located. The above-mentioned article also regulates the jurisdiction in inheritance lawsuits based on two principles; (i) the last domicile of the inheritor and (ii) the location of the goods principles. Accordingly, the disputes regarding the deceased person's movable and immovable properties in Turkey and whose last domicile is not in Turkey, the jurisdiction will be settled before the courts of where the property settled.
- Moreover, in the event that a deceased person left a property outside of Turkey, settlement of the property in Turkey could be enough for assuring the international jurisdiction of Turkish Courts. Article 43 stipulates the rule of exclusive jurisdiction in terms of immovable properties to inheritance. Additionally, an exclusive jurisdiction rule regarding an immovable property would be seen in all other countries’ law systems. Therefore, the jurisdiction clauses which give jurisdiction to the courts of foreign states in relation to an immovable property settled in Turkey would be null and void.
3. The Applicable Law in the Inheritance Lawsuits with a Foreign Element
The applicable law in the inheritance disputes with a foreign element should be determined on grounds of Article 20 of the Law numbered 5718:
- (1) The national law of the deceased shall govern inheritance. Turkish law shall apply to immovable property located in Turkey.
- (2) Provisions relating to the reasons of opening, acquisition and distribution of succession shall be governed by the law of the state where the estate is located.
- (3) The State shall inherit estates situated in Turkey which do not have any inheritors.
If the inheritor is a foreigner, the applicable law in the inheritance lawsuits shall not be Turkish Law. On the other hand, even if a foreigner deceased left an immovable property in Turkey, disputes regarding the pertinent immovable property shall be governed by Turkish Law.
- (4) The form of a testamentary disposition is subject to the provision of Article 7. A testamentary disposition executed in compliance with the national law of the deceased shall also be valid.
- (5) The power of disposition to execute a testamentary disposition is governed by the national law of the executing person at the time of the disposition.
Testamentary dispositions made by a person who is legally and physical capable of making testamentary dispositions according to his own national law, also in accordance with procedure of his own national law, shall be valid. Here, it does not matter whether the subject of testamentary disposition is movable or immovable property.
4. Recognition and Enforcement Procedure for Foreign Court Decisions on Inheritance
- Recognition and enforcement of foreign court decisions concerning inheritance law is used to give validity to inheritance declaration issued by foreign courts. Inheritance declarations are declaratory decisions so to give validity to an inheritance declaration given by a foreign court, the decision shall be recognized in Turkey. Otherwise, this decision may not be used as an evidence to acquire the property of the inheritor. The recognition decisions shall be requested from the court at the place of habitual residence of the person against whom enforcement is requested if s/he has a domicile in Turkey or from one of the courts in Istanbul or Ankara or Izmir if s/he does not have a domicile or habitual residence in Turkey.
- On the other hand, the inheritance declarations regarding an immovable property in Turkey of the inheritor cannot be recognized in Turkey due to courts in Turkey have exclusive jurisdiction over immovable properties in Turkey. Additionally, if the inheritance declaration was issued by a foreign notary or municipality, this decision cannot be recognized in Turkey due to only court decisions may be recognized according to Law numbered 5718.
5. Enforcement of Testament
The testament issued in a foreign country may be submitted directly to the Turkish courts, directly and the fulfilment of the respective testament, that is, the issue of an inheritance declaration according to the testament. The testament issued in a foreign country shall include an apostille or a ratification of the Turkish Consulate to be valid and applicable in Turkey. However, this requirement can be excluded via bilateral or multi-lateral agreements.