Non-Turkish citizens have more limited rights and authorities compared to Turkish citizens. These limitations stem from our country’s sovereignty. When examining whether foreigners can be heirs according to Turkish legal regulations, it’s essential to consider various angles. For Turkish citizens, wills play a crucial role in posthumous dispositions. However, there are distinctions for foreigners, and the validity of such documents may differ based on citizenship. Foreigners should seek legal advice to understand their rights and obligations regarding inheritance agreements.
Additionally, foreigners cannot acquire an unlimited amount of real estate in Turkey solely through inheritance rights; specific rules apply to foreign ownership of property, including restrictions on land acquisition. In disputes involving foreign elements, the determination of applicable law primarily considers Law No. 5718 on International Private Law and Procedural Law (MÖHUK). Legal professionals navigate these complexities to ensure fair and just outcomes. Remember that legal matters can be intricate, and seeking professional advice is essential for both Turkish citizens and foreigners navigating inheritance laws
1. Determining the Applicable Law for Disputes Arising from Inheritance Rights
When dealing with disputes related to inheritance, especially when at least one party is foreign, correctly identifying the applicable country’s law is crucial. Article 20 of Law No. 5718 on International Private Law and Procedural Law (MÖHUK) explicitly addresses this issue.
Immovable Property (Real Estate): If the property subject to inheritance is an immovable property (such as land, houses, or shops) located in Turkey, Turkish law directly applies. Regardless of the foreign individual’s nationality, Turkish legal provisions regarding inheritance rights govern real estate inheritance in Turkey.
Movable Property: For movable property (such as cars, money, or jewelry), the law of the deceased person’s nationality applies. In other words, the inheritance provisions of the country to which the deceased person belonged will govern movable property inheritance.
Estate (Tereke): The rules regarding the opening, acquisition, and distribution of the inheritance depend on the law of the country where the estate (tereke) is located. If the estate (tereke) consists of assets in a specific country, that country’s law should be applied concerning the reasons for opening the inheritance, its acquisition, and its division.
No Heirs: If there are no heirs, the estate (tereke) remains with the State.
Nationality of the Deceased: When determining the applicable law for inheritance, the nationality of the deceased plays a crucial role. The nationality of the heirs is not relevant in this context.
Foreign Law Restrictions: Foreign law applicable to the estate (tereke) may impose restrictions, especially concerning immovable properties. It is essential to examine relevant legislation to understand any limitations on foreign heirs’ capacity to dispose of assets within the estate.
Turkish Court of Cassation Ruling: The Turkish Court of Cassation (Yargıtay) has ruled that foreign individuals seeking inheritance rights over real estate in Turkey must have inheritance rights over immovable properties according to the Foreigners Law.
2. Applicable Law for Testamentary Dispositions
When dealing with disputes related to inheritance, where at least one party is foreign, correctly identifying which country’s law applies is of great importance. Article 20 of Law No. 5718 on International Private Law and Procedural Law (MÖHUK) explicitly regulates the issue of which country’s law applies to disputes arising from inheritance law.
Accordingly:
Immovable Property (Real Estate):
In cases where the property subject to inheritance is an immovable property (such as land, houses, or shops) located in Turkey, Turkish law directly applies to the inheritance. This means that if the inheritance includes real estate in Turkey, regardless of the foreign individual’s nationality, Turkish legal provisions regarding inheritance rights will be applicable.
Movable Property:
However, if the inheritance includes movable property (such as cars, money, or jewellery), the law of the deceased person’s nationality applies. In other words, the inheritance provisions of the country to which the deceased person belonged will govern.
Estate (Tereke):
The rules regarding the opening, acquisition, and distribution of the inheritance are subject to the law of the country where the estate (terek) is located. Therefore, if the estate (terek) consists of assets in a specific country, that country’s law should be applied concerning the reasons for opening the inheritance, its acquisition, and its division.
Regardless of the above, if there are no heirs, the estate (tereke) remains with the State.
It is important to note that:
When determining the applicable law for inheritance, the nationality of the deceased plays a crucial role. However, the nationality of the heirs is not relevant.
Nevertheless, the foreign law applicable to the estate (tereke) may impose certain restrictions, so it is essential to examine the relevant legislation. These restrictions could limit the foreign heir’s capacity to dispose of assets within the estate, especially immovable properties.
The Turkish Court of Cassation (Yargıtay) has ruled that for a foreign individual to be eligible for inheritance rights over real estate in Turkey, they must have inheritance rights over immovable properties according to the Foreigners Law.
2.1. Applicable Law for Formal Requirements in Testamentary Dispositions
First Alternative: Country of Execution
If a will or inheritance contract is executed in a specific country, the formal rules prescribed by the law of that country apply. For example, if a will is executed in France, French formal requirements govern its validity.
Second Alternative: National Law of the Deceased
Alternatively, the national law of the deceased person (i.e., the law of their citizenship) can determine the formal requirements. Regardless of where the will or contract was executed, it will be valid if it complies with the provisions of the deceased person’s national law.
2.2. Applicable Law for Capacity Requirements in Testamentary Dispositions
When it comes to capacity in testamentary dispositions, we consider who can create a will or inheritance contract. The capacity to make testamentary dispositions is determined by the national law of the person making the disposition at the time of execution. For instance, if a German citizen wishes to create a will, they should follow the provisions of the German Civil Code regarding capacity.
3. Limitations on Foreigners’ Inheritance Rights
Foreign individuals who are not Turkish citizens encounter specific limitations when it comes to acquiring real estate and limited real rights (such as usufruct rights) in Turkey. The rules that apply to foreigners acquiring real estate through other means also extend to cases where the acquisition occurs through inheritance.
The principles governing foreigners’ acquisition of real estate and limited real rights in Turkey are outlined in Article 35 of Law No. 2644 on Land Registry. According to this article:
Foreign nationals, subject to compliance with legal restrictions, can acquire real estate and limited real rights in Turkey if they are citizens of countries determined by the President due to international bilateral relations or cases necessitated by national interests.
The total area of real estate acquired by foreign individuals and independent, permanent limited real rights cannot exceed ten percent of the district area subject to private ownership or thirty hectares per person nationwide. The President has the authority to increase the allowable amount per person nationwide up to twice the existing limit.
In summary, the rights of foreigners to acquire real estate and limited real rights in Turkey are subject to specific restrictions. To be eligible for acquiring real estate or limited real rights in Turkey, a foreign individual (i.e., someone who is not a Turkish citizen) must:
Be a citizen of one of the countries determined by the President.
Ensure that the total area of real estate and independent, permanent limited real rights acquired does not exceed the specified limits.
These restrictions also apply to acquisitions through inheritance. Consequently, it is not possible to inherit real estate or limited real rights that surpass these specified limits. If real estate or limited real rights that foreigners are not allowed to acquire do pass to them through inheritance, the assets will be liquidated, and the value will be converted into monetary compensation. In other words, if a foreigner inherits assets they are not eligible to own, they can receive compensation equivalent to the value of those assets.
For more detailed information on foreigners acquiring real estate in Turkey, you can refer to our article titled “Foreigners’ Acquisition of Real Estate in Turkey
4. Is an Inheritance Certificate
Obtained Abroad Valid in Turkey?
Foreign court decisions must undergo a process of recognition and enforcement to be valid in Turkey. Without this process, a court decision issued in a foreign country cannot automatically be considered valid within Turkish jurisdiction. As mentioned in our article titled “Is a Divorce Decree Obtained Abroad Valid in Turkey?”, even divorce decrees obtained abroad require recognition and/or enforcement procedures to be effective in Turkey.
Regarding inheritance certificates (also known as “veraset ilamı”), they serve as evidence that the deceased’s assets, rights, and obligations have passed to the heirs. If an heir intends to deal with the estate, they must first obtain an inheritance certificate from the Sulh Hukuk Mahkemesi (Family Court) or any notary public in Turkey. The inheritance certificate demonstrates the legal heirs and can be challenged if necessary. However, even if obtained through a court proceeding, the inheritance certificate does not carry the finality of a court judgment, rendering it ineligible for direct recognition and enforcement.
Therefore, as a general rule, an inheritance certificate obtained abroad is not automatically valid in Turkey.
5. Foreigners Obtaining an Inheritance Certificate in Turkey
Foreign individuals face no legal obstacles when it comes to obtaining an inheritance certificate in Turkey. Therefore, a foreign individual can obtain an inheritance certificate from the Sulh Hukuk Mahkemeleri (Family Courts) in Turkey regarding an inheritance located abroad.
6. Competent Court for Inheritance Cases Involving Foreign Elements
The international jurisdiction of Turkish courts is regulated under Article 43 of Law No. 5718 on International Private Law and Procedural Law (MÖHUK). According to this article, inheritance cases are heard by the court where the deceased’s last residence was in Turkey. If the deceased’s last residence was not in Turkey, the court where the estate assets are located has jurisdiction.
Disclaimer: International inheritance disputes are multifaceted and require individual examination. The information provided above may be partially or wholly inapplicable to specific cases. It is crucial to seek legal advice tailored to your unique circumstances.
