Inheritance law is a branch of law that aims to answer questions about the inheritance of the inheritance, to whom, at what rate and in what order, in other words, about the inheritance of inheritance. If the testator or heir is a foreign national, or if his or her residence or habitual residence is in a foreign country, or if the testamentary disposition is arranged in a foreign country, the law of more than one country will be touched upon during the acquisition of the right of inheritance, and at this point, international private law rules will come into play regarding which country’s law will be applied.
Article 20 of the Private International Law (MÖHUK) determines which law will be applied in terms of the transfer of inheritance in relations involving a foreign element in our country. Pursuant to Article 20 of the MÖHUK, which is a general provision, “Inheritance is subject to the national law of the deceased.” In this respect, the issue of who will be the heir to the deceased is determined according to the national law of the deceased. However, the 2nd, 3rd and 4th paragraphs of the same article contain the exceptions to the general rule in the 1st paragraph and have considerably narrowed the application area of the general rule.
The law made its first exception by arranging that Turkish Law would be applied to the immovables of foreign nationals in Turkey with the second sentence of the first paragraph of the aforementioned article. In Turkish Law, pursuant to article 599 of the Turkish Civil Code (TMK); heirs directly acquire the possession and real rights of the legator on the immovables. However, in order for the immovable in the inheritance of the inheritor to be passed on to his heirs, certain transfer procedures must be fulfilled. The first thing to be done for the inheritance to pass to the heirs is to obtain a “certificate of inheritance/heritage certificate” by applying to the Civil Court of Peace or the Notary to prove the right and title of heirship of the heirs.
Certificate of inheritance (certificate of succession); It is a document that creates the presumption that legal and appointed heirs have the title of heirship and inheritance shares on the inheritance of the testator.
The transfer of the movable/immovable property in the inheritance of the inheritor will be made according to the ratio of the inheritance shares written in the inheritance certificate.
However, the situation is slightly different for foreign nationals. Namely; It is important to specify whether the document is requested for movable properties, immovable properties or both movable and immovable properties when applying to the authorized and authorized Turkish Courts by foreign citizens to obtain the inheritance certificate in Turkey. Because the national law of the legator about movable property; In terms of immovables, since Turkish Law is applied, two separate heirship documents should be issued for movables and real estates.
Pursuant to the second paragraph of Article 20 of MÖHUK, the opening of the inheritance, its acquisition and division are subject to the law of the country where the estate is located, as another exception to the general rule indicating the law to be applied to the inheritance. For this reason, the evaluation of a preliminary issue such as the opening of the inheritance will be made in accordance with the law of the country authorized by the binding rules of MÖHUK. The acquisition and distribution of the inheritance will also be evaluated after the conclusion of these evaluations.
If the immovable estate is located in Turkey, Turkish Law will be applied to this immovable estate. On the other hand, it will be clarified whether the heirs of the inheritor, who are foreign citizens, have the title of heir according to the national law of the inheritor, in the transfer of the right of inheritance on the immovable property in Turkey. In other words, whether or not he is eligible to inherit will be determined according to the citizenship status of the testator at the time of death and the legal status of the person requesting the certificate of heirship on the day the testator dies and the inheritance is opened. There is no provision in the Turkish Civil Code that prevents the issuance of a certificate of heirship about the foreign heir. However, in order to be able to issue a certificate of inheritance by notaries, it is necessary to have full and correct access to the population records. Since it is not possible for the Notaries to determine that the identity records of foreign nationals kept in a foreign country are complete and accurate, a certificate of inheritance is not issued for foreign nationals from Notary Publics.
At this point, another issue that should be evaluated is whether it is possible to recognize and enforce the writ or population records duly issued by the courts of the country where the testator is a citizen or by the registry office, showing that he is the heir of the deceased. In the MÖHUK, it is regulated that civil court decisions and uncontested judicial decisions can be recognized in our country. Identity records duly issued by the Population Directorates of the country of citizenship, showing the bond between the decedent and the persons claiming to be heirs, are not considered to be a court order and/or a document that has that effect, and the court orders issued on this subject are valid documents until proven otherwise due to their nature. In other words, since it is a non-contentious judicial process that does not constitute a final judgment in material terms, it is not possible for these documents to be recognized and enforced in Turkish Courts.
In order for foreign citizens to obtain a certificate of inheritance in our country, an application to the Court is required. In addition, even if this person has a certificate of heirship issued by Turkish courts indicating that he is the heir of a foreign national, if he wishes to inherit the real estate, it is checked whether the person is a citizen of one of the 183 countries included in the list prepared by the Council of Ministers in 2012. After the heir of the inheritor, who is a citizen of one of the 183 countries in the list, has a valid heirship certificate in Turkey, the transfer of the ownership of the immovable property to the heir will be completed on the records, together with the completion of the necessary procedures in the title deed.
However, if the heir is a citizen of a country not included in this list, he will not have the right to own the inherited immovable property. In that case, it can be said that the list of the Council of Ministers is the determining factor, not the reciprocity principle, in the acquisition of real estate by the heirs of the heirs of foreign nationals in Turkey. Inheritance right of the heirs of the inheritors who are citizens of one of the countries other than the 183 countries on the list; however, it will be formed on the price that arises as a result of the sale of the relevant immovable, in other words, on the movable.
The national law of the testator shall apply to the movable properties (car, money in the bank, etc.) in the estate of the testator, who is a foreign citizen. Even if the case is filed in Turkey, in matters related to movable inheritance, the law of the country of which this person is a citizen will be governed. In the case of the transfer of the movable estate, the inheritance certificate obtained from the Turkish Courts will be sufficient for the heir of the foreign national to acquire the right of inheritance on the property in Turkey.
If a foreign citizen does not have an heir, what will happen to his estate in our country has been determined within the scope of MÖHUK article 20/3, and our State will have a right on the estate.
