How is an Inheritance Share Transferred in Turkish Law?
Transfer of Inheritance Shares
Also known as “Transfer of Inheritance Share,” the “Transfer of Inheritance Shares” means that the heir transfers their inheritance share over part or all of the estate if they wish. The transfer of inheritance shares can occur either before or after the inheritance opens. Transfer agreements can be made reciprocally or gratuitously.
The expected inheritance right is not an acquired right yet, but a right that is likely to be acquired in the future. The heir can transfer their future expected inheritance right. As a rule, it is not possible for the potential heir to dispose of the expected inheritance right. However, the Turkish Civil Code (TCC) Article 678 allows the transfer of inheritance rights under certain conditions while the testator is alive.
Heirs hold rights in joint ownership and cannot act alone until the partition is completed. However, TCC Article 677 allows heirs to act alone over their inheritance shares exceptionally during the joint ownership phase.
Heirs can transfer their inheritance shares over the entire estate or a part of it to another heir or a third person. According to TCC Article 677, transfer contracts for inheritance shares are subject to different conditions, provisions, and results for both situations.
An exception to the transfer of inheritance shares is when the testator appoints the heir who transfers their inheritance share as the beneficiary of a specific bequest (TCC Article 517). In this case, the transferring heir can transfer their inheritance share excluding the specific bequest. However, this matter can be otherwise agreed upon in the contract.
The transfer of inheritance shares to another heir usually occurs among heirs in the same class. If a transfer is made to an heir in a different class, this transfer will have the same effect as a transfer to a third party.
Formal Requirements of the Inheritance Share Transfer Agreement
The formal requirement of the inheritance share transfer agreement is determined by whether the transfer is made to another heir or a third person. If the inheritance share is transferred to another heir, the transfer agreement must be in written form (TCC Article 677/f. I). The written form requirement is a simple written form and a validity condition. It is sufficient for the parties to sign the contract. If the transfer is gratuitous, only the transferor’s signature is sufficient.
“… since there was no written agreement between the plaintiff and the defendant, and the property was registered, the orally made inheritance share transfer agreement is invalid and does not confer any right to the plaintiff in law (…)” 8th Civil Chamber 2010/6303 E., 2011/3508 K.
Transfer of Inheritance Share to a Third Party and Formal Requirement
Form of Notarization
According to TCC Article 677/f. II, the inheritance share transfer agreement to a third party must be notarized. The former TCC Article 612 did not specify the validity form of this transfer. With the provision of TCC Article 677/f. II, this gap was filled, and a more qualified form requirement was imposed compared to the transfer to another heir. Therefore, the inheritance share transfer agreement must be notarized.
“(…) The plaintiff and the defendant are siblings, and the lawsuit is based on Article 612 of the Turkish Civil Code. The defendant transferred his inheritance share to the plaintiff with a notarial deed dated 18.8.1993 (…)” 2nd Civil Chamber 2006/2837 E., 2006/3337 K.
Consequences and Results of Inheritance Share Transfer
The inheritance share transfer agreement can only be made after the inheritance has opened and until the partition is completed. Once the partition is done, there is no joint ownership over the estate, and each heir can freely dispose of their share.
Inheritance share transfer agreements can be reciprocal or gratuitous. In a reciprocal transfer, one party cannot demand the performance of the contract from the other party without fulfilling their obligation.
If an inheritance share transfer agreement is made without complying with the formal requirements, the contract is invalid. However, if asserting invalidity constitutes an abuse of rights, invalidity cannot be asserted.
If the inheritance share transfer agreement is reciprocal, liability for defects and eviction regarding the subject matter of the contract will arise. In this case, the provisions on liability for defects and eviction in sales contracts regulated in the Turkish Code of Obligations should be applied.
Transfer of Inheritance Share to a Third Person
The transfer of inheritance share to a third person who is not an heir is regulated in TCC Article 677/f. II. In this case, the contract does not give the third person the right to participate in the partition. The third person only gains the right to demand the share allocated to the heir at the end of the partition or when the inheritance community is converted to divided ownership.
In other words, the transferred right will not create a real effect; the person who acquires the inheritance share only has a personal claim. It is not possible to agree otherwise in the contract, as the parties cannot grant rights effective against third parties through their contract.
Consequences and Results
The person who acquires the inheritance share has no rights against the transferring heir, other heirs, or the executor of the will before the partition of the inheritance. Since they do not gain the status of an heir, they cannot participate in or demand partition. However, in some cases, it is foreseen that the person who acquires the share may demand partition or participate in the partition to protect their rights.
Promise to Request Partition Within a Specific Period in the Transfer Agreement
In this case, if the transferring heir has promised in the transfer agreement to request partition within a specific period, the acquirer can request partition within this period. The second situation in which the acquirer is protected is when they are granted the authority to represent.
If the transferring heir grants the acquirer the authority to request and participate in the partition, the acquirer can act as a representative. The final option is for the acquirer to request the appointment of a guardian to participate in the partition by applying to the judge.
Personal Claim
Since the transfer of inheritance share to a third person only creates a personal claim, it does not result in any changes in the rights and obligations related to the status of heir for the transferring heir. The transferring heir does not lose the status of heir and participates in the partition as a member of the inheritance community.
The obligation of the transferring heir is to transfer the estate property that falls to them at the end of the partition to the third person. The transferor transfers the ownership of the estate properties one by one to the acquirer.
Liability of the Heir Transferring the Inheritance Share for Estate Debts
In case of transfer of inheritance share to another heir or a third person, the transferring heir is generally liable for the estate debts together with other heirs. However, the third person who acquires the share will only be liable for the part they acquired.
Liability Determined by the Transfer Agreement
The liability for estate debts can be assumed by the third person acquiring the share, not the transferring heir, through the transfer agreement. In this case, only the person acquiring the share will be held liable for the estate debts.
Joint Liability
The transferring heir continues to be jointly liable for the estate debts to the creditors of the deceased for five years. However, if the transfer is made to another heir, this period starts from the date of the transfer agreement.
Right of Recourse
If the transferring heir has fulfilled the estate debts by paying more than their inheritance share, they can assert the right of recourse against the person acquiring the share.
Pledging Inheritance Shares
Joint Ownership and Disposition Transactions
Since there is joint ownership over the inheritance shares before the partition of the inheritance, heirs must decide unanimously for disposition transactions. However, as the shares are not concretely determined, no pledge can be established over the inheritance properties.
Promise to Pledge
Although the inheritance share is not concretely determined, a pledge can be established over the inheritance share through a legal transaction under the Law of Obligations, which can be considered a promise to pledge. This promise must be made in accordance with the formal requirements specified in TCC Article 677. It is also possible to annotate it to the land registry, but establishing a mortgage with a simple written pledge promise contract may be seen as forcing the law. Therefore, it is recommended to do it formally.
Seizure of Inheritance Shares
Since the transfer of inheritance shares is possible under Turkish Law, it is possible for the creditors of the person transferring the inheritance share to seize the share.
Seizure Process and Results
The seizure is applied to the estate properties that will fall to the share of the heir as a result of the partition. The seizure process can be carried out by annotating it to the land registry. Placing a seizure on the inheritance share restricts the heir’s freedom of disposition, and decisions regarding the joint property are made by the enforcement authority. However, if a seizure is placed on the inheritance share, the sale cannot be requested as long as the inheritance community continues. However, the sale of the estate properties that fall to the share owner as a result of the partition can be requested.
Transfer of Inheritance Share Before the Inheritance Opens
A person can only dispose of the property left to them through inheritance with the opening and partition of the inheritance.
Conditions Required for the Transfer of Inheritance Share
Potential Heir as the Transferor
The transfer of inheritance right is only possible by a potential heir. This person does not have to be a legal or appointed heir; what matters is the likelihood of them becoming an heir in the future.
The Acquirer Being an Heir or a Third Person
The inheritance right can be transferred to another heir or a third person. This situation is not linked to different provisions and results as in the transfer after the inheritance opens.
Formal Requirement of the Transfer Agreement
TCC Article 678, which regulates the transfer of the expected inheritance right before the inheritance opens, does not specify the formal requirement of the transfer agreement. In this case, a simple written form is sufficient for the transfer to another heir. However, if the transfer is made to a third person, the contract must be notarized.
Participation or Permission of the Testator in the Transfer Agreement
If the testator participates in or permits the transfer agreement made by the potential heir, the inheritance right transfer agreement becomes valid. This situation used to require the participation and permission of the testator according to the old law. What is meant by the testator’s participation and permission is a debated topic in the doctrine.
CONSEQUENCES AND RESULTS OF THE TRANSFER OF INHERITANCE SHARES
The testator’s participation or permission is required for the transfer of unopened inheritance shares. If the testator participates in the transfer agreement, they become a party to the transactions, and the acquirer gains the status of an heir. However, in this case, according to the general view, the testator’s participation only creates a debt-incurring transaction, and the acquirer’s right only becomes a personal claim.
The transferred inheritance right before the inheritance opens is an expected right and is not real in nature. In this case, the acquirer does not have the right to demand partition or participate in the partition after the inheritance opens. However, if the acquirer is another heir, they can have these rights.
Participation or Permission of the Testator
If the testator participates in or permits the transfer agreement, the transfer agreement becomes valid. In this case, the participation or permission of the testator is considered a debt-incurring transaction.
Transfer for Consideration
In the case of a transfer of inheritance right for consideration, the acquirer’s obligation arises at the time the contract is established unless otherwise stated in the contract. The heir transferring their right can apply the provisions on the debtor’s default if the consideration is not fulfilled. The transferring heir’s obligation is to transfer the estate properties in accordance with the transfer agreement to the acquirer. If this obligation is not fulfilled, the acquirer can hold the transferor liable by relying on the provisions on breach of contract.
Consequences of the Testator’s Non-Participation or Lack of Permission
According to Article 678 of the Turkish Civil Code, agreements made without the participation or permission of the testator are not considered valid. This situation can be interpreted as invalidity, absolute nullity, or voidability. The Court of Cassation argues that such agreements are absolutely null. In cases where the inheritance share transfer agreement is invalid, it is stated that the things given with the agreement can be reclaimed (Turkish Civil Code Article 678/f. II).
Is Pledging and Seizing Inheritance Shares Possible?
According to Article 954 of the Turkish Civil Code, claims and other rights that can be transferred to others are pledgeable. However, in the case of an unopened estate, the inheritance right cannot be pledged in any way because there is no concrete right that can be pledged in this situation.
How is an Inheritance Share Transferred in Turkish Law
