Yabancıların Türkiye’de Mirası, Yabancılık Unsuru Taşıyan Miras Davalarında Türk Mahkemelerinin Milletlerarası Yetkisi Ve Yabancı Mahkemelerde Verilen Yabancı Unsurlu İlamların Türkiye’de Tanınması, Tenfizi ve Yabancıların Türkiye’de Mirasçılık (Veraset) Belgesi Alması

Inheritance of Foreigners in Turkey, International Jurisdiction of Turkish Courts in Inheritance Cases with Foreign Elements and Recognition and Enforcement of Decisions of Foreign Courts with Foreign Elements in Turkey and Obtaining Certificate of Inheritance (Veraset) by Foreigners in Turkey

The fact that the acquisition of movable and immovable property in Turkey by foreign nationals has increased in recent years has naturally led to an increase in the number of issues such as the manner in which the movable and immovable property owned by foreign nationals in the event of their death and acquired in Turkey will be transferred to and acquired by their heirs, and the recognition and enforcement in Turkey of inheritance decisions (judgments) issued by foreign courts.

If a deceased German citizen has immovable property in Turkey, how can the heirs of the deceased German citizen acquire their inheritance shares in Turkey? How can they register their inherited immovable property or, for example, a vehicle in their name? Or if a deceased foreigner has money in a bank in Turkey, how can his heirs take this money into their savings upon death and inheritance?

For example, can transactions be carried out in Turkey with inheritance certificates issued by foreign administrative authorities or obtained from the court of a foreign country? Or, for example, upon the death of a Turkish citizen living in the Netherlands, can his heirs take action in Turkey with the certificate of inheritance obtained from the Dutch authorities? Or, how does a will issued in a foreign country give result in Turkey?

The subjects of our article are below;

-Determination of which law shall be applied to the inheritance of a foreign heir, i.e. the law of his/her nationality or the law of the country where his/her property is located.

-International jurisdiction of Turkish courts in inheritance cases, recognition and enforcement in Turkey;

-The judgements related to inheritance issued by foreign courts;

-How a foreigner will obtain a certificate of inheritance (VERASET ILAMI) in Turkey,

-whether the certificate of inheritance ( VERASET ILAMI) obtained in his/her own country is valid in Turkey,

-How is the property and related rights inherited from a foreign person will pass to the heirs of the foreign heir, and how to make the registration procedures.

A . WHAT IS THE INTERNATIONAL JURISDICTION OF THE TURKISH COURTS IN INHERITANCE CASES WITH AN ELEMENT OF FOREIGNNESS? WHICH COURT IS AUTHORIZED AND COMPETENT IN TURKEY IN FOREIGN HERITAGE CASES?

In accordance with Article 11 of HMK No. 6100; “In cases arising from inheritance, the jurisdiction of the Turkish courts is final jurisdiction, with the exception of cases concerning the issuance of a certificate of inheritance and the issuance of a new certificate of inheritance”. However, Article 11 of HMK No. 6100 does not apply to inheritance cases with an element of foreignness.

In inheritance cases with an element of foreignness; The international jurisdiction of the Turkish courts is governed by Article 43 of Law No. 5718 on International Private Law and Procedural Law (MOHUK).  According to this article, “cases concerning inheritance shall be heard in the court of the last place of residence of the deceased in Turkey, and in the court of the place where the property included in the trust is located, if the last place of residence is not in Turkey.” If it is noticed, Article 43 of the MOHUK No. 5718 regulates which court will have jurisdiction in cases of inheritance with foreign elements on two grounds:

The court of the last place of residence of the heir

and/or the place where the property is located.

According to the regulation of the article, if a Turk or a foreigner whose last place of residence is abroad has left movable or immovable property in Turkey, the inheritance case of the Turk or foreigner will be heard in the court of the place where the inheritor has the goods in Turkey.

The fact that MURIS (the person who leaves an inheritance) has movable or immovable property in Turkey is necessary and sufficient for the realization of the international jurisdiction of the Turkish courts. Article 43 of the Law No. 5718 on International Private Law and Procedural Law is the exclusive jurisdiction rule in terms of immovables subject to inheritance. And the authorization agreements authorizing foreign state courts in terms of the immovables subject to inheritance in Turkey are invalid.

According to Turkish law, the court in charge of the case is the Civil Court of Peace where the heir resides.

The court in charge of the inheritance case varies according to the subject of the case. The court in charge of the title deed registration case, which is the subject of the inheritance case, is the Civil Courts of First Instance. In the same way, the competent court for the determination of the estate which is the subject of an inheritance case is the Civil Court of Peace. In short, according to the subject of the case, the court in charge varies.

A.1- WHICH LAW WILL BE APPLIED IN INHERITANCE CASES WITH A FOREIGN ELEMENT?

The law to be applied in inheritance disputes bearing the element of foreignness will be determined in accordance with Article 20 of the Law No. 5718 on International Private Law and Procedural Law. Article 20/1 of the MOHUK is amended as follows:

(1) “The inheritance is subject to the national law of the deceased. Turkish law applies to immovable properties located in Turkey.                          

(2) Emergence reasons of inheritance, acquisition and division of the inheritance shall be subject to the law of the country in which the estate is located.                

 (3) The probate without heirs in Turkey shall remain with the State.

(4) The provisions of Article 7 shall apply to the form of disposition on death. Death-related savings made in accordance with the national law of the deceased are also valid.

(5) The capacity to dispose of death is subject to the national law of the person who made the disposition at the time the disposition was made.”

As can be understood from the content of the above article, according to Article 20/1 of the Constitution, the basic rule is; “that the inheritance is subject to the national law of the deceased.” However, an exception to this rule was regulated and it was stipulated that “Turkish law shall be applied to inheritance cases related to immovable properties in Turkey”. In other words, it is necessary to say the following about which law will be applied in inheritance cases if the person who leaves an inheritance is a foreigner; The applicable law will not be Turkish law, but if the immovable properties of the foreign national are located in Turkey, Turkish law will be applied only in disputes in cases related to these properties. On the other hand, for the real estate of the heir in Turkey and the movable and immovable properties abroad, the national law of the deceased shall apply.

Turkish law applies to immovable properties located in Turkey. The main rule in determining the inheritance law is the national law of the deceased. Therefore, even if a Turkish citizen dies in Germany, the Turkish Courts; Within the framework of Turkish law, the inheritance will be divided among the heirs by determining the legal heirs of the inheritor and determining the share ratios.

For example, if the German citizen spouse of a Turkish citizen has died and the spouse who is a Turkish citizen has filed a lawsuit in the Turkish courts for the issuance of the inheritance certificate – VERASETNAME – then the inheritance share rates will be determined according to German law. However, if there is an immovable property in Turkey within the assets of the deceased German citizen, this immovable property will be shared according to Turkish law.

A.2- WHAT LAW WILL BE APPLIED IN CASES RELATED TO THE OPENING, ACQUISITION AND PARTİTİON OF THE HERITAGE THAT HAS AN ELEMENT OF FOREIGNNESS?

The law to be applied in cases and disputes related to the opening, acquisition and division of the inheritance bearing the element of foreignness is Article 20/2 of the Law No. 5718 on International Private Law and Procedural Law. According to the article, “the provisions relating to the reasons, acquisition and partition of the inheritance shall be subject to the law of the country in which the estate is located.” As it can be understood from the text of the article, there is no distinction between movable and immovable here. Therefore, Turkish law shall apply to the reasons, acquisition and partition of the foreigner’s inheritance within the borders of Turkey, without distinction between movable and immovable.

A.3- WHAT LAW WILL APPLY TO THE CAPACITY TO MAKE DEATH-RELATED SAVINGS AND THE MANNER OF DEATH-RELATED SAVINGS THAT HAVE AN FOREIGNER ELEMENT?

The law to be applied in cases and disputes concerning the capacity to make savings due to death and the form of savings due to death that have an element of foreignness is determined in accordance with Article 20/4-5 of the Law No. 5718 on International Private Law and Procedural Law.

(4) The provisions of Article 7 shall apply to the form of testamentary disposition. Testamentary dispositions made in accordance with the national law of the deceased are also valid.

(5) Testamentory disposing capacity is subject to the national law of the person who made the disposition at the time the disposition was made.

Article 7 of the Law No. 5718 on International Private Law and Procedural Law is regulated under the title of “Form in Legal Transactions”; “Legal acts may be carried out in accordance with the form prescribed by the law of the country in which they are carried out or by the substantive provisions of the law authorizing on the merits of that legal transaction.”

If we evaluate the above-mentioned law article; testamentary dispositions made by a person who is entitled to make testamentary dispositions according to his own national law in accordance with his own national law shall be valid. Here, it does not matter whether the subject of the savings due to death is movable or immovable.

B. HOW IS THE RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DECISIONS REGARDING THE INHERITANCE? WHAT PROCEDURES ARE THEY SUBJECT TO?

First of all, it is necessary to explain what the concepts of “Recognition” and “Enforcement” mean.

Recognition; It is the acceptance of a court decision made in a foreign country as a final verdict or conclusive evidence in our country. In other words, it is an institution that ensures that court decisions containing a foreign element are as if they were made in the country that made the recognition decision.. The lawsuit filed in relation to this is called a “recognition case”. The recognition case is necessary for court decisions that contain provisions that do not need to be enforced.

For example, if only a divorce decision has been made by the French Courts, if there is no provision such as custody, alimony, compensation in addition to this divorce decision (if there is no executive provision) in a statement then a recognition case can be filed.

Enforcement; It is the process that ensures that the decisions of foreign courts containing executive provisions issued as a result of the lawsuit regarding the private law relations of the persons are valid in Turkey and give rise to their provisions and consequences in Turkey. The lawsuit filed in relation to this is called the enforcement case.

If we follow the example we have given above; If a decree of divorce has been made by the French Courts in addition to a decree such as custody, alimony, compensation, in other words, if there is an executive provision, in order for this decision made in a foreign court to be valid in Turkey, it is necessary to open a recognition and enforcement case in order to be accepted and to carry out the works and transactions related to that decision. In other words, the fact that a foreign court decision has judgments and consequences outside the country where this decision is made, and that it can be enforced in Turkey, depends on the decision of enforcement by the competent Turkish court.

The basic provisions regarding the recognition and enforcement of foreign court decisions are regulated between Articles 50-59 of the Law No. 5718 on International Private Law and Procedural Law (MOHUK). In addition, the provisions of the Population Services Law No. 5490 on recognition and enforcement procedures and the Regulation on the Implementation of this Law on recognition and enforcement are also important for our subject.

B.1- WHAT ARE THE CONDITIONS OF RECOGNITION AND ENFORCEMENT PROCEEDINGS?

The conditions of recognition and enforcement proceedings are divided into two as preconditions and substantive conditions . According to Article 50 of the Code, the conditions required for the decision of recognition or enforcement are as follows:

  1. The original or certified photocopy of a court decision issued by the Foreign Court,
  2. The decision must be finalized,
  3. The entire Foreign Court Decision will have a certified copy translated into Turkish by a sworn translator and certified by official institutions (apostille).
  4.  The decision sought to be enforced must be given by the court or arbitrator and must have the qualification of a court decision. The decision of the administrative units or authorities such as the municipality, the governorship of the province, the Population Directorates, etc. cannot be enforced.
  5. There must be an actual or legal reciprocity arising from the law between the Republic of Turkey and the foreign state to which the declaration is given, or an agreement (contract) in this regard.
  6.  The Foreign Court Judgment must not be clearly contrary to public order (for example, in Turkish law, the main thing is the interests of minors in terms of custody. If this rule is ignored, an enforcement decision cannot be made.)
  7.  The declaration must have been issued in a matter that does not fall within the final jurisdiction of the Turkish Courts. (The jurisdiction of the Turkish courts in cases related to the same immovable property is final.) however, cases such as divorce, separation and annulment of marriage do not have definite authority.
  8.  Even if the person whose counter-enforcement is sought under the laws of a foreign country has not been duly summoned or represented in that court or has been rendered in absentia in violation of these laws, such person must not have appealed to the Turkish courts against the enforcement request on the basis of one of the above points. If he has objected, the case should be dismissed. In short, in order for an enforcement decision to be made, the foreign court must duly give the right of defense to the other party
  9.  In accordance with the rules of the conflict of Turkish laws in the foreign declaration concerning the personal status of Turks, the authorized law should not have been applied and the defendant, who is a Turkish citizen, should not have objected to the enforcement in this respect. In other words, in accordance with the rules of Turkish conflict of laws, if it is determined that the law stipulated for the divorce cases of the Turks is not applied and the defendant objects to this effect, the enforcement decision cannot be made.

B.2- WHAT ARE THE REQUIRED DOCUMENTS FOR RECOGNITION AND ENFORCEMENT?

• Original or notarized copy of the decision of the court of the foreign state,

 • Apostille commentary,

• Finalization of the court decision and translation of the apostille commentary through a sworn translator with consular attestation,

• Translated copy of passport and identity card,

• Attorney’s power of attorney (notarized)

Turkish courts may examine only whether there are conditions for recognition or enforcement in the case of recognition or enforcement of foreign court decisions. The correctness of the procedure applied in the foreign court decision in Turkish courts or the material and legal findings contained in the decision cannot be examined. This is called the “revision ban”.

After the general explanations regarding this recognition and enforcement described above, if we come to the issue of recognition and enforcement in foreign element inheritance cases;

First of all, there is no harm in saying that the certificate of inheritance issued by the foreign court is a determination provision. For this reason, in order for the certificate of inheritance obtained from a foreign court to have judgment and consequences in Turkey, a recognition case should be filed in Turkey for the recognition of the certificate of inheritance obtained from the foreign court by the Turkish Courts and its competent authorities.

B.3- WHERE AND IN WHICH COURT SHOULD THE PROCEEDINGS FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DECISIONS RELATED TO INHERITANCE BE FILED?

Proceedings for the recognition and enforcement of foreign court decisions relating to inheritance may be filed in the civil court of first instance of the place of residence of the person seeking recognition or enforcement in Turkey or, if the place of residence is not available, that is, if he does not reside in Turkey, in one of the civil courts of first instance in Ankara, Istanbul or Izmir.

B.4- WHO CAN REQUEST RECOGNITION OR ENFORCEMENT?

Anyone who has a legal interest in the recognition and enforcement of a foreign court decision may file and request this case in the Turkish court, subject to the condition that the decisions rendered by the foreign court are “finalized”.

B.5- IS IT POSSIBLE FOR TURKISH COURTS TO RECOGNIZE THE INHERITANCE CERTIFICATE OBTAINED FROM THE FOREIGN COURT OR THE WILL OPENED BY THE FOREIGN COURT REGARDING THE IMMOVABLE PROPERTY?

 It should be known that; On how to acquire the immovable properties in Turkey, Article 20 of the Code No. 5718. In accordance with the provision of the law whose article is clear; 

“(1) The inheritance is subject to the national law of the deceased. Turkish law applies to immovable properties located in Turkey. 

(2) The provisions relating to the reasons, acquisition and partition of the inheritance shall be governed by the law of the country in which the estate is situated.”

Since the Turkish Courts have exclusive jurisdiction over immovable property, it is not possible for the courts to recognize the certificate of inheritance (declaration of succession) or will obtained from the foreign court. It is obvious that the will validly drawn up according to the national law of the deceased is valid, but the relevant will alone will not be sufficient for the transfer of immovable property. For this reason, it is necessary to apply before the Turkish Courts for the acquisition of an inheritance certificate including the transfer of the immovables.

In this regard; Following the acquisition of the declaration or population records duly issued by the courts or Population Directorates of the foreign country of which they are citizens, which show the hereditary link between the spouse and children who are alleged to be the heirs of the MURIS respectively.

The application is made to the Civil Court of Peace and the issuance of the certificate of inheritance for the real estate and the completion of the necessary procedures in the Land Registry Office after the certificate of inheritance to be obtained is completed and the foreign national heir is required to be It is possible to transfer the immovable properties by inheritance.

In other respects, it is possible to recognize foreign court decisions regarding movables. If a decision of a foreign court on inheritance or a declaration of inheritance relates to both movable and immovable property in Turkey, it may be decided to recognize the part concerning movables.

C.- WHAT IS AN INHERITANCE CERTIFICATE? WHAT RIGHTS DOES IT GRANT TO THE RELEVANT PERSON?

An Inheritance Certificate is a document showing which person or persons are the legal heirs of a particular heir and their share of the legal inheritance.

In terms of Turkish law, these documents give the person in whose favor it is issued the opportunity to prove to third parties that he has the authority to dispose of as an heir in terms of the transactions and dispositions to be made on the inheritance property (tereke) and that he has this saving authority as an heir.

 In other words, in terms of Turkish law, the certificate of inheritance is to seize the actual dominion over the values of the inherited properties (tereke) in terms of the movables given to the heir upon his request and by proving his title as heir; In the case of immovable properties, it is a non-definitive authorization document that allows the deed to obtain and dispose of the title deed and possession and to collect the receivables.

C.1- IS THE INHERITANCE CERTIFICATE OBTAINED FROM A FOREIGN COURT VALID IN TURKEY ALONE? CAN LEGAL PROCEEDINGS BE TAKEN IN TURKEY WITH THE INHERITANCE CERTIFICATE OBTAINED FROM A FOREIGN COURT?

A certificate of inheritance obtained or issued from the notaries, population directorates or municipalities of a foreign country does not constitute a validity in Turkey. In other words, you cannot take legal action with the inheritance documents taken from these places in Turkey.

Moreover, if the Turkish courts have exclusive jurisdiction, it is not possible to grant recognition for the transaction in question. Since the Turkish courts have exclusive jurisdiction for the judgments on immovable property, it is not possible to recognize and enforce the decisions taken or given regarding these matters.

Therefore, it is not possible for the certificate of inheritance issued by the authorities of foreign countries to be recognized or enforced by the Turkish Courts. However, only declarations issued by foreign courts (certificate of inheritance) can only be recognized and enforced in Turkish courts.

In general, the decision of the certificate of inheritance (inheritance) obtained from a foreign court is not valid in Turkey alone. A foreigner cannot carry out official transactions in Turkey with the certificate of inheritance obtained from a foreign court (from his own country). In order to be able to; he must recognize and enforce the certificate of inheritance he received from the court of his own country from the Turkish court. The decision should not be related to the real estate.

C.2- CAN A FOREIGNER GET AN INHERITANCE CERTIFICATE FROM NOTARIES IN TURKEY?

Although the authority to issue inheritance certificates in Turkish law is given to courts and notaries, it has been accepted that inheritance documents containing an element of foreignness can only be issued by courts. Although Articles 71/A, 71/B and 71/C were added to the Notary Law with Article 14 of the Law No. 6217 on the Amendment of Certain Laws for the Purpose of Accelerating Judicial Services, according to these amendments that entered into force on October 1, 2011,  will be able to issue a certificate of inheritance in notaries. However, if there is a foreign national among those who request a certificate of inheritance, notaries cannot issue a certificate of inheritance.

In Turkish Law, there is no provision in Turkish Law that prevents the Turkish court authorized to issue an inheritance certificate for the inheritance subject to foreign law against the foreign inheritor.

C.3- WHERE AND HOW CAN A FOREIGNER OBTAIN A CERTIFICATE OF INHERITANCE (VERASET İLAMI)? WHAT EVIDENCE IS SHOWN? 

The heirs of the foreign national inheritor need a certificate of inheritance in order to register the inheritance rights (immovable, movable properties and rights and receivables) left to them in Turkey in proportion to their shares, to obtain their rights and receivables, and to dispose of them.  In addition to being a document showing the heirs of the foreign heir, the certificate of inheritance is a document that allows them to prove their title as heirs and at the same time allows them to dispose of the inherited property and rights (tereke).

Everyone who is a Turkish citizen must submit the certificate of inheritance in accordance with the provision of Article 598/1 of the Turkish Civil Code; It can request and receive from the Civil Courts of Peace or Notaries. However, Notaries cannot issue an inheritance certificate in cases where the genealogical link or legal inheritance cannot be determined, if there are contradictions or not clear in the population records, if the person applying for the will is issued or the inheritance certificate is a foreigner, if one of the heirs is a gaip (absent) or is adopted. In the presence of such a situation, the certificate of inheritance can only be requested from the Civil Courts of Peace. In other words, a foreigner cannot receive a certificate of inheritance from a Notary. An heir who has inherited from a foreigner must apply to the court in Turkey to obtain the certificate of inheritance. A foreigner can only request a certificate of inheritance from the Civil Courts of Peace.

In terms of proving the title of heir, which evidence can be used and the power of proof of the evidence will be determined according to the law of the judge. In the case of legal heirs, the hereditary connection between them and the heir must be proven. According to Turkish law, legal inheritance can be proved primarily according to the population records and in the absence of a population record, with all kinds of evidence. As emphasized in the decisions of the Court of Cassation, in addition to population records, court notices, land registry and tax records, settlement documents, mukhtar documents, military service records and witness statements can also be used as evidence.

In this sense, if the heir or heirs are Turkish citizens or are registered in the register of foreigners despite being foreigners, the population records kept in Turkey can be utilized. In addition to requesting the population records of foreigners, if any, the death registration certificate obtained from the foreign country or the records, records and other documents performing a similar function from the relevant states through international appeal, witness statements may also be applied to the examination of documents through an expert.

In order for the immovable property of the heir to be acquired, the heirs may submit all kinds of evidence (burial paper, hospital report, minutes prepared by the law enforcement authorities, documents prepared by the population and citizenship affairs units of foreign countries, etc.) that will serve to prove the relationship of inheritance between the heirs and the heirs after the death event. Documents received from official institutions of foreign countries should be officially translated into Turkish and apostille annotations should be added to these documents.

The declaration of inheritance (Veraset) related to immovable property, according to Turkish law; The certificate of inheritance in respect of movable property shall be given in accordance with the national law of the heir. If the heirs request a certificate of inheritance for both movable and immovable property, they must notify the court. Since the cases related to the request for the issuance of a certificate of inheritance are subject to non-contentious jurisdiction, they must be filed without adversaries. However, if there are persons who oppose the plaintiff’s title of heir and his share of the inheritance, it will be possible to show an adversary in the case of issuance of a certificate of inheritance.

Final evidence from foreign court notices (certificate of inheritance obtained from a foreign court) if they are recognized in accordance with the MOHUK Code (art. 58); if they are not recognized, they can be used as discretionary proofs.  In the event that the appointed heir or testamentary creditor requests the issuance of a certificate of inheritance in his favor, the relevant testamentary disposition must be submitted to the court.

When it is desired to benefit from official documents prepared by foreign state authorities, the fact that these documents have the character of official documents in Turkey depends on the approval (apostille) of the competent authority of the state to which the document is issued or by the relevant Turkish consular authority, without prejudice to the provisions of the international conventions to which Turkey is a party regarding the certification of foreign official documents. The party relying on the document written in a foreign language must also submit its translation to the court. The court may also request an official translation of the document, either spontaneously or at the request of the other party.

C.4- WHAT IS APOSTILLE? WHAT ARE THE APOSTILLES PROCEDURES FOR TURKEY?  WHICH AUTHORITIES ARE AUTHORIZED TO PERFORM APOSTILLE?

As a rule, official documents issued in a foreign country have the title of official in the country where they are issued. In order for an official document to be used as an official document outside the country in which it was issued, it must be certified by the consul of the state in which it is to be processed.

In this context, in accordance with Article 204 of the HMK Code, the official documents prepared by the authorities of foreign states to have this qualification in Turkey are subject to their approval by the competent authority of the State to which the document is issued or by the relevant Turkish consular authority. In addition, the provisions of the international conventions to which Turkey is a party regarding the ratification of foreign official documents are reserved.

The most important of these contracts is the La Haye Convention dated 05.10.1961 on the Abolition of the Obligation to Certify Foreign Official Documents. The Convention lays down the procedure to be followed in order for an official document issued in one of the Contracting States and enumerated in the text of the Convention to be used in another country.

Article 1 of the Convention stipulates that the apostille annotation shall be applied to “official documents issued in the territory of one of the Contracting States and to be used in the territory of another Contracting State”. Thus, it is aimed that the citizens of the contracting countries can directly use the said documents issued in their own countries in other party countries, and thus provide convenience and speed in the necessary transactions.

In this context, the convention states in Article 1 that the following documents are within the scope of official documents. Accordingly, official documents are the following documents;

• Documents issued by an official or officer subordinate to a judicial body or court of the state, including documents issued by the prosecutor, clerk of record or court of justice,

• Administrative documents,

• Notary deeds,

• Official declarations placed on documents signed by persons in a special capacity such as the certification by the official authority and notaries of the registration of the document or the existence of the document on a particular date and the authenticity of the signatures.

However, some official documents are excluded from the application area of ​​this convention. These are documents issued by diplomatic or consular officers and administrative documents directly related to trade or customs procedures.

Article 3 of the Convention states that the only procedure which may be considered necessary for the verification of the authenticity of the signature, the title of the person signing the document and, if necessary, the same as the seal or original on this document is the placing on this document by the competent authority of the State to which the document is issued the attestation annotation described in Article 4 (“Apostille”).

In this context, it is understood from the apostille commentary that it is the attestation annotation that allows the specified official documents to be accepted by the other state party authority without the need for any further processing.

Each contracting State shall determine by itself its competent authorities for issuing apostilles. In this context, governorships and district governorships for administrative documents and notary deeds; For judicial documents, Judicial Justice Commissions in centers with High Criminal Courts are authorized.

The document certified by apostille is considered a valid document in all countries party to the convention. An important point in this context is that the apostille annotation only confirms the accuracy of the signatures in the official document in question and the title of the person signing this document, and the presence of an apostille annotation in a foreign official document does not mean that this document is also verified in terms of content.

C.5- WHICH COURT IS RESPONSIBLE IF THE INHERITANCE CERTIFICATE CONTAINING THE FOREIGN ELEMENT IS ISSUED THROUGH A TRIAL WITHOUT A DISPUTE?

Since the court in charge of the requests for the issuance of an inheritance certificate containing an element of foreignness is the court of peace unless there is a contrary regulation, the court in charge is the court of peace in the case of requests for the issuance of an inheritance certificate through non-contentious jurisdiction.

C.6- WHICH COURT IS COMPETENT IF THE INHERITANCE CERTIFICATE CONTAINING THE FOREIGN ELEMENT IS ISSUED THROUGH A NON-CONTESTED TRIAL?

In terms of cases related to inheritance involving an element of foreignness in the law, the international jurisdiction of the Turkish court is specially regulated in Article 43 of the MÖHUK. In accordance with Article 43 of the Code, cases concerning inheritance shall be heard in the court of the last place of residence of the deceased in Turkey, and in case the last place of residence is not in Turkey, in the court of the place where the properties included in the trust are located.

C.7- WHICH COURT IS RESPONSIBLE FOR THE ISSUANCE OF INHERITANCE DOCUMENTS CONTAINING FOREIGN ELEMENTS IN CASE THEY ARE FILED THROUGH A CONTESTED JUDICIAL PROCESS?

If a person who is not listed among the heirs objects to the certificate of inheritance by applying to the court and stating that he is also the heir, the matter will now fall into the contentious jurisdiction as the issue becomes contentious. When the invalidity of the certificate of inheritance, that is, its cancellation (or correction) and the issuance of a new one are requested, this dispute can only be resolved through litigation since there will be parties who are in dispute with each other.

In the case of cancellation of the certificate of inheritance, the plaintiff may claim that he is either the heir or that the persons shown in the certificate of inheritance are not heirs or that the inheritance shares shown in the certificate are erroneous and that the certificate of inheritance may be amended or cancelled and a correct new one be issued.

If the plaintiff has only requested the cancellation of the certificate of inheritance, the court will not automatically issue a new document that will be satisfied with the cancellation of the old certificate of inheritance.

Although there is no special provision in the HMK Code, the court in charge of these cases will be the court of first instance in disputed jurisdiction, and the court in charge of the cancellation of the certificate of inheritance and the issuance of the new certificate of inheritance will be the court of first instance as well.

C.8- WHICH COURT HAS JURISDICTION TO ISSUE INHERITANCE CERTIFICATES CONTAINING FOREIGN ELEMENTS IF THEY ARE FILED THROUGH A CONTESTED JUDICIAL PROCESS?

Since the law adopts a stepped jurisdiction rule, cases related to inheritance involving an element of foreignness must first be filed in the court of the last place of residence of the deceased in Turkey; If the last place of residence of the heir is not in Turkey, the property included in the trust must be opened in the court of the place where it is located, regardless of its movable or immovable nature.

C.9- WHAT LAW WILL BE APPLIED IN THE ISSUANCE OF INHERITANCE CERTIFICATES CONTAINING AN ELEMENT OF FOREIGNNESS?

1) Determination of the Law to be Applied in Terms of the Reasons for the Opening of the Succession:

The law to be applied in cases of opening of the inheritance or in cases of emergencre of the inheritance is the state law in which the inheritance is located. Therefore, if the property included in the inheritor’s estate is located in more than one country, different laws will have to be applied in terms of the reasons for the emergence of the inheritance.

In terms of the reasons for the opening of the inheritance for the properties of the inheritor in Turkey, Turkish law shall be applied according to the Turkish Civil Code in accordance with Article 20/2 of the MOHUK Code. The burden of proof and the competent law on the evidence in terms of whether these reasons have been realized or not shall be determined by taking into account the rules of international procedural law.

In accordance with the MOHUK Code, whether the heir is to be deemed dead (presumption of death) or whether the state of infidelity has taken place shall be resolved in accordance with his/her national law, together with the reference to the person against whom the judgment of conviction or presumption of death has been made;

According to his/her national law, if the property of the person who cannot be deemed dead is located in Turkey or if his wife or one of his heirs is a Turkish citizen, it will be resolved according to Turkish law (art. 11).

When determining the competent law, the time of filing the lawsuit in accordance with Article 3 of the MOHUK Code shall be taken as the basis.

2)DETERMINATION OF THE LAW APPLICABLE IN TERMS OF THE DETERMINATION OF THE HEIRSHIP TITLE OF THE PERSONS APPLYING FOR THE ISSUANCE OF THE INHERITANCE CERTIFICATE AND THE INHERITANCE SHARES OF THE LEGAL HEIRS

In the case of inheritance involving an element of foreignness, to whom a certificate of inheritance is to be issued and the inheritance shares of the legal heirs are in accordance with Article 20/1 of the MOHUK Code; the movable and immovable heritage (tereke) of the deceased outside Turkey and the national law of the deceased, but if there is an immovable estate in Turkey, this part of the heritage (tereke) shall be subject to Turkish law due to the exception rule in 20/1.

Accordingly, the heirs and their share of the inheritance shall be determined in accordance with the national law of the heir; however, if the inheritor has immovable property in Turkey, only the heirs and inheritance shares related to this property will be determined according to Turkish law.

When issuing certificates of inheritance containing an element of foreignness, the causes and consequences of disinheritance, refusal of inheritance or renunciation of inheritance other than deprivation of inheritance must also be determined in accordance with the law applicable to inheritance in accordance with Article 20/1 of the MOHUK Code.

D-  IN WHICH WAY DO FOREIGN REAL PERSONS ACQUIRE REAL ESTATE IN TURKEY THROUGH INHERITANCE? IS THERE A LIMITATION ON THIS?

Article 35 of the Land Registry Law No. 2644 The criterion to be taken as the basis for determining which citizens of the country can acquire immovable property in Turkey within the scope of the article is “to be a citizen of the countries determined by the President of the Republic in terms of international bilateral relations and when the interests of the country require, provided that the legal restrictions are complied with, the total area of the acquired immovables and limited in-kind rights of an independent and permanent nature, ten percent of the area of the district subject to private ownership and thirty hectares per person throughout the country not to pass”.

As can be seen, the amount of immovable property that can be acquired by inheritance in the law is limited in two ways, both in terms of proportional over the area of the district and in terms of the amount throughout the country, with the rights of the same independent and continuous nature acquired, and thus the President of the Republic is given the authority to determine which citizens of the country can acquire immovable property in Turkey through inheritance. In this context, according to the statement in the law, the President of the Republic will decide which countries can acquire immovable property in Turkey, taking into account the bilateral relations between other countries and Turkey and Turkey’s interests.

The second important amendment introduced by the Law No. 6302 and the amended Land Registry Law art. 36 f. 6 stipulates that the immovable acquired by foreign real persons through inheritance contrary to the limitations in f.1 shall be liquidated by them within a period not exceeding one year to be given by the Ministry of Finance, but if the immovable is not liquidated within the period granted to them, the immovable will be liquidated and the price obtained will be given to the right owner.

Thus, even if the conditions in f. 1 are not met, the right of inheritance is not completely abolished, the immovable property is transferred to the heir, but the heir cannot dispose of the immovable property, the immovable is liquidated and the price is given to the right owner. In this respect, although persons who do not meet the relevant conditions cannot be immovable property owners in Turkey, it is fixed by Article 36 f. 6 of the Land Registry Law that these persons are not deprived of their legal inheritance rights or even the rights they should have through savings due to death.

D.1- IN WHICH WAY DO FOREIGN LEGAL ENTITIES ACQUIRE REAL ESTATE IN TURKEY THROUGH INHERITANCE? IS THERE A LIMITATION ABOUT THIS?

In Turkish law, legal entities are entitled to all rights and obligations in accordance with Article 48 of the Turkish Code, except those that depend on human characteristics such as age, gender, kinship. Therefore, it is not possible for legal persons to acquire immovable property through legal inheritance. However, it is possible for them to acquire immovable property in Turkey through death-related savings.

Pursuant to Article 35 f. 2 of the Land Registry Law, it is stated that the legal entities referred to as “Commercial companies having legal personality established in foreign countries according to the laws of their own countries may acquire immovable and limited in-kind rights only within the framework of the provisions of special laws” and that the legal entities mentioned in the expression “can acquire immovable property in Turkey only within the framework of the provisions of the special law”.

D.2- IN WHICH WAY DO FOREIGN REAL PERSONS ACQUIRE INHERITANCE (Money in the bank, Car etc.) IN TURKEY? IS THERE A LIMITATION ABOUT THIS?

The national law of heir (Muris) shall be applied to the movable property (car, money in the bank, etc.) in the assets (tereke) of the heir (Muris) who is a citizen of a foreign country.

Even if the lawsuit is filed in Turkey by the legal heirs of the heir (murisin) who is a citizen of a foreign country, the property related to the movable inheritance will be judged according to the law of the country of which this person is a citizen and will be processed according to the law of his own country. For the transfer of movable inheritance property and rights (tereke) to their legal heirs, the certificate of inheritance obtained from the Turkish Courts will be sufficient. Since the exclusive authority of the Turkish state for immovables, as explained above, does not exist for movables, there is no restriction on the land of muris for movables.

D.3- WHAT ARE THE PROCEDURES AND DOCUMENTS REQUIRED FOR THE REGISTRATION OF MOVABLE OR IMMOVABLE INHERITANCE SHARES IN THE NAMES OF THE HEIRS?

First of all, in order to obtain the inheritance rights found in Turkey by foreign citizens, the certificate of inheritance to be obtained from the Turkish court is needed. In addition, even if this person has an inheritance certificate issued by the Turkish courts stating that he is the heir of the foreign national muris, if he wants the transfer of the immovable property to him, it is examined 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 muris, who is a citizen of one of the 183 countries included in the list, has the certificate of inheritance valid in Turkey, the transfer of the ownership of the immovable property to the heir will be completed on the records as soon as the necessary procedures are completed in the deed. 

However, if the heir is a citizen of a country that is not included in this list, he will not have the right of ownership over the inherited immovable property. Therefore, it can be said that the list of the Council of Ministers is decisive in the acquisition of immovable property in Turkey by the heirs of the muris who are foreign citizens, not the principle of reciprocity. The right of inheritance of the heirs of the muris, who are citizens of one of the countries other than the 183 countries on the list; however, the price arising as a result of the sale of the relevant immovable property, in other words, will be formed on the movable. The national law of the muris will be applied to the movable goods (car, money in the bank, etc.) in Turkey of the muris who are citizens of foreign countries. Even if the case is filed in Turkey, the issues related to the movable inheritance will be ruled according to the law of the country of which this person is a citizen. In the case of the transfer of the movable property, the certificate of inheritance obtained from the Turkish Courts will be sufficient for the heir of the foreign national muris to obtain the right of inheritance on the property in Turkey.

Therefore, if we specify the stages in items after the general information above,

  1. First of all, the certificate of inheritance must be issued. For this purpose, the heirs acquire the inheritance of the heirs to present to the court in Turkey the population records, death certificate, etc. issued by the courts or population directorates of the country of which they are citizens showing their hereditary kinship.
  • Then, by applying in the Civil Court of Peace, a request for the issuance of an inheritance certificate should be made and an application should be made to the Land Registry Directorates, Traffic or Banks with this document.

3- Documents such as wills issued according to the laws of foreign countries are not accepted by the Turkish Courts in line with the decisions of the Court of Cassation, so the declaration of succession is taken from the Turkish courts according to Turkish Law.

What are the Documents Required for the Registration of Movable or Real Estate?

*Identity card with photo, passport taken within the last six months

* Death Certificate (Apostille commentary in foreign country) and Certificate of Inheritance

* Birth certificate, Marriage Certificate if there are children

* Population Registration Sample (Depends on whether the country of citizenship has issued a population registration sample)

* Submission of the Death Certificate at the Tax Office, the declaration of revenge to be received and the document stating that the tax attachment has been dismissed

* All documents and the documents requested from the Land Registry Office must be submitted.

* A title deed showing the new heirs must be obtained for the real estate.

If a transaction is to be carried out with a power of attorney in the title deed or at the tax office, a separate authorization is required for each transaction (e.g. the inheritance transfer process must also be specified in the power of attorney.)

Do transfers require approval from each of the heirs?

The approval and signature of all heirs is not needed for the transfer of the immovable. A single person can make inheritance transactions or apply to the Land Registry Office alone.

How is the fee charged in the transfer of the real estate?

According to the Law on Fees No. 492, if it is not subject to any fee, it must be paid if there is a tax debt on the property. For this, the municipality where the real estate is located is visited and a fair value letter is requested.

By obtaining a document from the tax office that the inheritance and inheritance tax relationship has been cut. You should go to the land registry office. The Land Registry Office will only ask for a working capital fee.

When all these embroideries are completed correctly, the land registry directorates will issue new title deeds to the heirs.

ACCORDING TO TURKISH LAW, HOW TO OPEN AND FULFILL THE WILL MADE BY THE FOREIGN INHERITOR? IS IT POSSIBLE TO PERFORM IT?

In the field of international inheritance law, without making a distinction between movable inheritance and immovable inheritance, in principle, the law applicable to inheritance is subordinated to a single law, that is, to the national law of the deceased (the inheritor).

However, by making an exception in terms of immovable properties in Turkey (with the provision of MOHUK. in. 22İf.1), it was accepted that Turkish law would be applied to immovable inheritance.

Therefore, it can be said that the national law of the deceased will be applied as a whole in the inheritance problems of a deceased foreigner except for the immovable estate in Turkey.

According to the MOHUK Code arrangement form, the law of the place where the estate is located is authorized in inheritance law problems related to the opening, acquisition and division of the inheritance (MOHUK. art. 22/f.2).

In other words, even if the law applicable to the inheritance of a deceased foreigner is a foreign inheritance law, the provisions of Turkish inheritance law will be applied to the securities in Turkey.

The solution of the problems of the “capacity to make a will and the form of the will” of a deceased foreign heir is again shown in Article 22 of the Constitution. The driver’s license is subject to the national law of the foreign person at the time the will is made (Art. 22/f5 of the MOHUK); it is subject to the national law of the deceased or the law of the place where the will was drawn up (Locus Regit Actum = LRA rule).

It is sufficient that the will made by the foreign heir must conform either to the form of his national law or to one of the forms of the law of the place where it is issued.

It should also be noted that a will made in a foreign country is considered valid in terms of form if it is made in accordance with the conditions of the form required by Turkish law in terms of the foreigner’s immovable properties in Turkey (MOHUK. art. 6 and in. 22/4).

In order to prevent the inheritance of a foreigner who dies without leaving an heir in Turkey from passing to a foreign state; If the estate in Turkey is left without an heir according to its inheritance status, the Turkish State will be the heir. (MÖHUK: t art. 22/f.3).

Accordingly, it is not possible for a foreign state to have rights over the inheritance in Turkey as an heir.

Apart from these aforementioned, the general and special injunctions relating to the opening of the inheritance and the will regulated by our Civil Code between Articles 531 and 538 are matters pertaining to the transfer of the inheritance subject to the Lex Fori as they are non-contentious judicial proceedings aimed at ensuring the transfer of inheritance.

In this regard, with the bilateral agreements made between the states on the basis of reciprocity, the competent authority in taking these measures, the scope and the fulfillment of wills are solved.

To go down this path stems from the fact that states cannot unilaterally determine the international jurisdiction of the courts and ‘authorities’ in the non-contentious jurisdiction.

The Justice of the Peace shall not undertake as an injunction the transactions in which his national law shall apply to the movable property of a foreign person who has died in Turkey and such as the sale and blockage of the movable property of this person in Turkey.

In such cases, before taking any action on the foreigner’s property, it shall be checked whether there is a judicial contract between the State of which the foreigner is a citizen and Turkey, and if there is a contract, the necessary actions shall be taken accordingly.

Generally, since these contracts give the consulates detailed powers according to the principles of reciprocity, it is possible that the precautionary measures related to the land can be taken by the Magistrate (on the basis of Lex Fori) at the place where the foreigner died, especially if there are people who claim the foreigner’s land.

The problem of “fulfillment of the will left behind” by a foreign person is also important. In this case, the will of the foreigner made the subject of the suit must be duly and enforceable (in accordance with the provisions of Art. 537 et seq. of the HUMK).

For this, according to the national law of the foreigner, this authorization must be valid and feasible, a written decision (declaration) must be made by the competent authority in that place and then the enforcement decision to be given by the competent Turkish Civil Judge of First Instance must be made.

However, after this stage, the competent magistrate (at the last residence of the deceased in Turkey) shall carry out the procedure and execution of the will entrusted to him in accordance with the decision of the Court of First Instance in accordance with Articles 5,35-538 of the Civil Code (in accordance with the Lex Fon basis).

It is only possible for foreign nationals to inherit from a deceased Turkish heir in the same way in the country of that foreign person in exchange for granting the right of inheritance to Turkish citizens.

In order for foreigners to acquire a right through inheritance and in the meantime the deeds made in their favor by will, the necessary conditions are required in accordance with the limitations in the Land Registry Law No. 2644 (art. 36 and 37) and the relevant provisions of the HMK Code and the principle of reciprocity.

Finally, in this regard, it is necessary to point out the following point regarding the fact that a foreign national is an heir to a Turkish national inheritance: In such a case, the issue of the right of heir and the license of the foreigner who has acquired Turkish citizenship in accordance with the relevant provisions is again 1062 p. K. shall be determined in accordance with the provisions and principles of reciprocity.

In the field of inheritance law, some special driver’s license rules are regulated in the law.

The capacity to dispose of death is tied to national law, which is the general binding point of inheritance law. Accordingly, the inheritance is subject to the national law of the deceased (Article 20 of the Constitution).

According to the law of the country of which the heir is a citizen, the heirs will be able to receive a share of the trust if they have the capacity to inherit it.

The capacity to make savings due to death is also subject to the national law at the time of disposition (Article 20/5 of the Code).

When issuing a will, the person will be able to make arrangements according to the material provisions of the law of whichever country he is a citizen of.

However, there is also a special rule for immovable property. If the immovable property of the heir exists, then the special rule for the immovable property will be applied. The license to acquire immovable property is subject to the law of the country in which the immovable property is located. (MÖHUK m.21).

HOW CAN FOREIGN PERSONS ISSUE A WILL IN TURKEY FOR THEIR ASSETS IN TURKEY?

A will is a written document or verbal statement containing the last wishes of the heir. The will can be made before the official authorities or handwritten by the heir. An oral will is an exceptional application and can be made in the presence of special conditions.

In our country, the wills prepared by Turkish citizens in front of a notary public are sent to the relevant court ex officio by the Notary for the opening of the will and reading to the relevant persons regarding the registration of their deaths in the population records.

Foreign persons must first prove that they are heirs and obtain a certificate of inheritance by filing a lawsuit for declaration of succession, and then file a lawsuit for the opening and reading of the will. All heirs designated by the succession must send the will through the court for reading.

In the event that the heirs of the heir determined by the declaration of succession do not live in Turkey, that is, if they do not have an address in Turkey, the notifications should be made to their legal addresses abroad.

Upon completion of the notification phase, the court will be deemed to have formally opened and read the will. However, the opening and reading of the will is not sufficient for its implementation. A separate suit must then be filed for the execution of the Will. In the case of the execution of the will filed in order for the will to be implemented, notice must be given to all the heirs determined by the declaration of succession.

HOW CAN FOREIGN PERSONS ARRANGE THEIR WILL IN RELATION TO THEIR ASSETS ABROAD IN TURKEY?

In the event that a will is drawn up regarding the foreigner’s assets in Turkey in his own country, in accordance with Article 20/4-5 of the International Private Law, “Savings due to death made in accordance with the national law of the deceased are valid.

The capacity to dispose of death is subject to the national law of the person who made the disposition at the time the saving was made.

In other words, the will of the foreigner prepared from abroad in accordance with his own national law will be valid in Turkey. At this point, the fact that the subject of the disposition is movable or immovable does not change the applicable law.

At this point, first of all, there are two options in front of the heir. The inheritor may have it opened and read by applying to the court of the country that issued the will, or by applying directly to the Turkish Courts to ensure that it is opened and read. A will issued abroad can be opened and read by the relevant foreign court, as well as by the Turkish Courts.

If the will is opened and read by the foreign court; the decision should be recognized and enforced by the Turkish courts. We would like to emphasize that every decision requested to be recognized and enforced by the Turkish Courts must be absolutely final. In other words, it should include an annotation that the trial has been terminated by the court that made the decision, that is, it has become final.

Likewise, if this decision is made by the member states of the Hague convention, it must also include an apostille stamp. However, if the apostille obligation is abolished between Turkey and the country where the official will is issued, the official will can be submitted directly to the Turkish court.

Paragraphs 4 and 5 of Article 20 of the MOHUK Code provide for the law applicable to the form and capacity of death-related savings.

According to Article 20 of the MOHUK, the capacity to dispose of death is subject to the national law of the person who made the disposition at the time the disposition was made.

Accordingly, in terms of the validity of the will in the case, it will be determined according to Turkish law whether the MÖHUK has the capacity to save due to death.

The form of savings due to death is regulated in Article 20/4 of the MOHUK.

However, Turkey is a party to the La Haye Convention of 1961 on Disputes Relating to the Law on the Form of Wills and this Convention is of a uniform nature with regard to the law applicable to the form of wills.

For this reason, the provisions of The Hague Convention of 1961 will find application instead of Article 20/4 of the Constitution on the form of wills. The Hague Convention of 1961 was drawn up in order to prevent the proceedings for the issuance and withdrawal of wills from being considered null and void simply because they had not complied with the necessary formal requirements and to keep the wills alive as much as possible (favor testamenti). In this respect, the Convention provides for 8 points of attachment as an alternative to each other in relation to the form of testamentary dispositions. These:

  • the law of the country in which the testator makes the will,
  • the law of the country of which the testator is a citizen at the time of his making the will or at the time of his death,
  • the law of the country of his residence,
  • the law of the country of habitual abode, and
  • In the case of immovables, it is the law of the country where the immovable is located.

For example; If we consider that a Turkish citizen living in Germany has made a will in Germany, the validity of the will in form can be determined according to German law, which is the place of regulation, or Turkish law, which is national law.

HOW IS THE EXECUTION OF THE WILL ISSUED ABROAD DONE?

A Turkish or foreign person living abroad can make savings related to the movable immovable properties existing in Turkey by issuing a will abroad, as well as regulations that will affect the heirs living in Turkey.

For example, a person living in England may have left his property in Turkey to only one child with the will he left behind when he passed away. Or a person who lives abroad and dies there may have made a will about his property in Turkey abroad. In this case, how can the heirs of the testator put into practice the will drawn up abroad?

In the face of the will, the heirs can follow two paths;

The first of these is that the heir or heirs can request that the will be opened and certified in the country where it was issued.

Or he may request that the will issued in a foreign country be opened in Turkey or in the country where it was written and that it be fulfilled as desired in the will.

The important point to be mentioned at this point is that; a will filed by a court of one country must be executed in that country in order to be valid in another country.

The will issued in a foreign country may be submitted directly to the Turkish courts and the execution of the will, that is, the issuance of the certificate of inheritance according to the will, may be requested.

In order for a will issued in a foreign country to have consequences in Turkey, it must be approved by the Turkish consulate or must contain an apostille commentary. However, if the consular approval or apostille obligation is removed in the legal assistance agreement between Turkey and the country where the official will is issued, the official will can be submitted directly to the Turkish court.

If the will has been filed by a court of a foreign country, the recognition of the foreign court’s decision on the opening of the will must be requested.

Legal proceedings involving orders that will prevail after the death of the heir are called disposition on death.

Death-related savings are divided into two as death-related savings in the formal sense and death-related savings in the material sense. The legislator recognized in Article 20/f. 5 of the MOHUK that the capacity of the heir to dispose of death must also be determined in accordance with the national law at the time the disposition was made. Whether the person has the right at the time of performing these procedures will be determined according to the national law to which he is subject.

Another point that we need to specify in this regard is which form of the will or inheritance contract in question should contain. Article 20 of the MOHUK Code recognizes that death-related savings made in accordance with the national law of the deceased are also valid after determining that the provision of Article 7 applies to the form of death-related savings.

If we want to concretize by giving an example, a Turkish citizen living in Germany must prepare his will either according to German law, which is the country where the legal transaction is carried out in accordance with Article 7 of the MÖHUK, or according to Turkish Law, which is national law.

According to Turkish law, the will can be prepared formally in a notary public or in the handwriting of the heir and containing the date and signature of the issuance or orally in the presence of two witnesses in case of emergency. The inheritance contract can only be drawn up in writing at the notary.

Finally, in accordance with Article 43 of the MOHUK Code, inheritance cases must be heard in the court of the last place of residence of the deceased in Turkey and, if the last place of residence is not in Turkey, in the court of the place where the properties included in the trust are located.

Recognition of decisions rendered by foreign courts in whole or in part may be requested. (MOHUK 40). The same procedure shall be applied in non-contentious judicial decisions. (Article 42/2 of the MOHUK). Savings due to death are subject to the national law of the deceased or to the law of the place where the death savings are made ( 2675 S.Y. art. 22 ), ( Locus regit actum ).

In order to prevent the death savings from becoming invalid due to form, he signed a contract (Official Gazette dated 17.1.1983) in The Hague on “Disputes of law concerning the form of testamentary savings” on 5.10.1961 and stated that the savings due to death were not subject to death;  if it is in accordance with the law of the place where the testator made the savings due to death,

a) If it complies with the law of the State of which the testator is a citizen at the time of his death or at the time of his death,

 b) If it is in accordance with the law of the place where the testator was located at the time of his death or at the time of death,

 c) If it is in accordance with the law of the place where the testator was habitually located at the time of his death saving or at the time of death,

d) If it relates to real estate, if it is in accordance with the law of the place where they are located,

 It stipulated that it would be considered valid in terms of form.

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