Estate Planning During Your Lifetime: Will, Inheritance Contract, Gift, Division of Assets and Protection of Reserved Portions

What Is Estate Planning and When Should It Be Done?

Estate planning is not merely the preparation of a will. It is a private-law arrangement that considers together the present structure of a person's assets, debts, the legal status of family members, the protection of the surviving spouse, the continuity of companies, the use of real property and possible claims after death. The legal transaction is made during the person's lifetime; the inheritance opens upon death. Confusing these two periods can lead to an invalid transaction and to tax and reserved-portion disputes.

The asset and family inventory should be drawn up first

Land registry records of real property and the usufruct, mortgages, attachments and annotations on them; bank assets; company shares; receivables and debts; rights in foreign countries; and earlier gratuitous transfers should each be recorded separately. Claims of the spouse arising from the matrimonial property regime must be kept in view when the net scope of the estate is determined. Planning should not be built on rights that do not actually exist or that belong to someone else.

Why should the status of the heirs be determined in advance?

Articles 495–501 of the Turkish Civil Code (TMK) govern the system of statutory succession, and Articles 505–506 govern the disposable portion and the reserved portions. The position of descendants, the parental line, the surviving spouse, adopted children and other relevant persons varies with the family structure. Siblings have no reserved portion in current Turkish law; however, they may still be statutory heirs when the conditions are met. Older texts should not be confused with the current reserved-portion rates.

Estate Planning by Will

A will is the unilateral disposition of the decedent taking effect upon death. As a rule, the testator can revoke it or replace it with a new disposition made in accordance with the law. Appointing someone as heir and leaving someone a specific asset have different consequences. A will does not give anyone an unlimited and irrevocable title-deed right during the testator's lifetime.

Capacity to make a will and types of wills

Under Article 502 TMK, making a will requires capacity of discernment and the completion of fifteen years of age. The official will, the handwritten will and, when the statutory conditions are met, the oral will are subject to different forms. For an official will, the requirements concerning the competent official and the witnesses must be checked; for a handwritten will, the requirements of handwriting from beginning to end, date and signature must be checked separately.

Witnesses and transactional safety in an official will

The existence of an official form does not mean that no action can later be brought about the content or the capacity. The disqualification of witnesses, the declaration of intent and the signing arrangements are also reviewed. A health assessment on the day of the transaction may be useful; however, a single report is not a definitive guarantee of validity in every case.

How is a will amended or removed?

Article 542 TMK and the following articles govern revocation of a will and its relationship with later dispositions. Where there is more than one will, which of them remains in force and to what extent is examined by looking at date and consistency of content. The safekeeping of the will, its opening and the notification of the persons concerned should also be planned separately.

The difference between annulment of a will and abatement

Article 557 TMK provides grounds for annulment such as lack of capacity, defect of intent, content or conditions contrary to law or morality, and non-compliance with form. Article 559 TMK governs the time limits for the annulment action. That a valid will infringes the reserved portion is not an automatic ground for annulment; if the conditions are met, abatement (tenkis) comes into play. The claims and the proof required in these two actions are separate.

The Inheritance Contract and Its Binding Effect

Unlike a will, an inheritance contract requires the mutual intent specific to a contract and an official form. Under Article 503 TMK, a person who is to conclude an inheritance contract must have capacity of discernment, be of full age and not be under guardianship. The form of the official will under Article 545 TMK is also taken into account. These conditions are stricter than the capacity required to make a will.

The positive inheritance contract and waiver of inheritance

A contract that binds the parties by appointing an heir or by making a specific grant is different from a contract in which a prospective heir waives the right to inherit in whole or in part. Articles 528–530 TMK must be assessed carefully, in particular as to the effect of a waiver of inheritance on the descendants of the person who waives and as to a waiver given for consideration.

Can an inheritance contract be freely amended unilaterally?

Unlike a will, the unilateral removal of an inheritance contract is restricted. The written agreement of the parties, the grounds for removal or withdrawal provided by law, and lifetime dispositions that are contrary to the contract must be assessed separately. Making an inheritance contract does not by itself prohibit every disposition of assets during the person's lifetime; the binding force of the contract concerned and the rights of the injured contractual creditor must be examined.

Lifetime Gifts and Transfers of Real Property within the Family

Transferring real property to a child during life is different from leaving it by will after death. A gift is, as a rule, without consideration; a sale is made for a real price; a contract of maintenance until death involves actual performance of care. The name of the transaction written in the land registry does not on its own settle the real intent of the parties.

Gifts and equalization in the estate

Under Article 669 TMK, gratuitous transfers made to a descendant are subject to a special presumption for the purposes of equalization (denkleştirme), unless the decedent has expressly stated otherwise. It cannot be accepted that every transfer to one child is independent of that child's inheritance share and has no effect on the other children. Equalization, abatement of reserved portions and simulation by the deceased (muris muvazaası) are three separate legal institutions.

Real sale, hidden gift and simulation by the deceased

Where a decedent transfers, in the form of a sale, real property that he or she actually wished to give away, in order to move assets away from the heirs, a claim of simulation by the deceased may arise. The Court of Cassation (Yargıtay) Decision of the Unification of Case Law (İçtihadı Birleştirme Kararı) No. 1/2 of 01.04.1974 is among the main foundations in this area. Whether the real price was paid, the economic situation of the parties, family relations and the place of the real property within the total assets are examined together. Not every low price or intra-family sale is simulation in itself.

When is a contract of maintenance until death preferable?

A transfer made through a genuine care relationship under Articles 611–619 of the Turkish Code of Obligations (TBK) differs from a gift. In a lifetime transfer of real property, the statutory mortgage right of the care creditor and, where appropriate, usufruct or residence safeguards are considered. Non-performance of the duty of care and simulation at the formation of the contract are not the same legal ground.

Related articles: Contract of Maintenance Until Death; Title Transfers Between Parents and Children; Title Cancellation and Registration Due to Simulation by the Deceased; Equalization in Inheritance.

Calculating the Reserved Portion and the Risk of Abatement

The reserved portion limits the decedent's freedom of disposal within the boundaries set by law. Under Article 506 TMK, the reserved portion of descendants is one half of their statutory inheritance share; that of the mother and the father is, for each, one quarter of their statutory inheritance share. The reserved portion of the surviving spouse varies with the line of heirs with which the spouse inherits. Older texts on the reserved portion of siblings must not be applied.

How is the disposable portion calculated?

Under Articles 507–509 and 565 TMK, the net estate must be determined, the relevant debts and expenses deducted, the gratuitous transfers that must be taken into account by law identified, and the reserved portions calculated. A sound calculation cannot be made by starting only from the total market value of the real property in the land registry.

Is every gift made by the decedent during life taken into account?

The same automatic result cannot be attached to every transfer. The date, the purpose and the beneficiary of the transfer, whether it was made on account of the inheritance share, and the categories of transfers subject to abatement under Article 565 TMK must be examined.

Time limit for abatement and protective strategy

The one-year period running from the time of learning under Article 571 TMK and the relevant outer limits are important. The time-limit regimes of the heir's abatement claim and of an action for cancellation of title based on simulation by the deceased are not the same. Before any action, all will, land registry and payment records should be compared.

The Surviving Spouse's Home and the Matrimonial Property Regime

The spouse's statutory inheritance share must not be confused with the participation claim that may arise from the liquidation of the matrimonial property regime. In the event of death, one should first assess which rights belong to the estate and the spouse's claims under the matrimonial property regime, and only then the division of the inheritance. For provisions such as Articles 240 and 652 TMK, the conditions of specific rights over the family residence may be examined. It cannot be asserted that the spouse is in every case automatically entitled to acquire the same real property.

Planning with Usufruct, Right of Residence and Bare Ownership

A person may consider transferring the bare ownership of real property during life while reserving the right of use or of obtaining income. The usufruct under Article 794 TMK and the following articles and the right of residence under Articles 823–825 serve different functions. A usufruct can give access to rental income; a right of residence essentially protects personal benefit of the property as a dwelling. The registration of the rights in the land registry, maintenance costs, sale to a third party and the consequences of termination on death must be planned separately.

Related articles: Usufruct and Right of Residence; Pledge and Usufruct over Company Shares.

Transfer of Shares and Management in Family Companies

The passing of the shares of a family company to the heirs does not necessarily mean that management authority passes to the same persons or in the same way. In joint-stock and limited liability companies, the transfer of shares, the provisions of the articles of association, shareholders' agreements, registration and management mechanisms differ. Planning should take into account both the continuity of the company and the effects on reserved portions and equalization. The assets of the company and the personal assets of a shareholder must not be confused.

Document check for company continuity

The articles of association, the share ledger, the trade registry, share certificates, records of representation and signing authority, inheritance and waiver contracts, bank guarantees and partnership debts should be assessed together. Determining the person who will continue to run the business does not mean eliminating all the statutory rights of the other heirs.

Assets Abroad and International Succession

Where there is foreign citizenship, real property abroad or a will drawn up abroad, Law No. 5718 on Private International and Procedural Law (MÖHUK), the provisions specific to real property in Türkiye, international jurisdiction and the recognition of foreign official documents must be examined. A will or inheritance contract under Turkish law must not be automatically equated with a foreign trust or similar institution. Translation, apostille or consular formalities depend on the specific document.

Tax, Land Registry Fees and Transaction Costs

Gift, sale, transfer on death and transfer of company shares are not subject to the same fiscal regime. The land registry fee, the Inheritance and Transfer Tax Law, and the dates of acquisition and disposal and related exemptions for income tax purposes must be determined according to the provisions in force on the day of the transaction. A transaction that looks advantageous for tax purposes is not automatically safe as to reserved portions or validity.

Capacity and Intent Safeguards in Wills and Inheritance Contracts

What is essential is that the person making the transaction can express his or her genuine wish, is not under pressure and can assess the consequences of the transaction. The choice of witnesses, the transaction documents, current medical records where necessary and the risks of conflicts of interest between the parties should be examined in advance. Dementia or advanced age does not by itself amount to definite incapacity. The review of form and capacity lies at the centre of the disputes that may arise after death.

Related articles: Old Age, Dementia and Legal Capacity; Protecting the Assets of Elderly Persons and Persons in Need of Care.

Decision and Risk Matrix by Option

15-Point Checklist Before Planning

1. Determine the current status of the statutory and prospective heirs.
2. Review separately the matrimonial property regime, the spouse's participation claim and the family residence.
3. Obtain current land registry records and encumbrances.
4. Draw up an inventory of bank, company, debt and surety positions.
5. Record earlier gifts and transfers with their dates.
6. Determine whether the disposition is to take effect during life or after death.
7. Check the specific capacity requirement applicable to each person.
8. Verify the required official form, witness and signature conditions.
9. Calculate the reserved portion and the disposable portion on the basis of sources.
10. Distinguish the effects of equalization and abatement from one another.
11. Consider usufruct and safeguard options for residence or income needs.
12. Design company management and share ownership separately.
13. Confirm tax and fee consequences on the day of the transaction.
14. Plan the safekeeping of documents and the procedure for amendment where needed.
15. If there are assets abroad or foreign documents, check MÖHUK.

Legal Distinctions in Light of Court of Cassation Decisions

Form and capacity to be a party: Court of Cassation 7th Civil Chamber, 20.11.2023, E. 2023/4439, K. 2023/5523

The part of the decision that could be accessed discusses, in an agreement transferring an inheritance share, the status as heir on the date of the transaction, the persons who took part and issues of form. This decision shows that estate planning before death, inheritance contracts and the transfer of inheritance shares after death cannot be carried out with the same standard document.

Annulment claims against a will: Court of Cassation 7th Civil Chamber, 18.04.2024, E. 2023/1170, K. 2024/2096

In the passage that could be accessed, the conformity of the will with the form requirements, and the claims of lack of capacity and defect of intent at the date of the transaction, are assessed separately from one another. Each alleged unlawfulness must be proved with its own evidence. The reasoning of a lower-court stage of the proceedings should not be presented as if it were the Court of Cassation's own operative result.

Genuine gift and abatement: Court of Cassation 16th Civil Chamber, 12.07.2011, E. 2011/4418, K. 2011/4222

In the dispute that could be accessed, it was alleged that the reserved portion had been infringed because of real properties given during life to a grandchild. That a transfer was made in the land registry as a gift does not by itself exclude abatement review under inheritance law. Which calculation will be made at the end of the case depends on the legal nature of the transfer.

Related articles: What Is a Will and How Is It Prepared?; How Is an Inheritance Contract Made?; Waiver of Inheritance Agreement.

Disinheritance, Waiver and Disclaimer of Inheritance Do Not Produce the Same Legal Result

On what limited grounds is disinheritance possible?

Under Articles 510–512 TMK, the disinheritance of an heir with a reserved portion is not a general power of punishment that depends on the decedent's mere preference. There must be statutory grounds, such as the heir having committed a serious offence against the decedent or one of the decedent's relatives, or having substantially failed to perform obligations arising from family law. It is important that the ground for disinheritance is stated in the disposition mortis causa and that, in case of objection, the existence of the ground is proved by those who benefit from it. The legal consequence of failing to prove the ground is not the same as annulment of the transaction as a whole; Article 512 TMK provides for special consequences.

Protective disinheritance in case of a certificate of loss

Article 513 TMK provides a special disinheritance relating to half of the reserved portion of a descendant against whom a certificate of loss (borç ödemeden aciz belgesi) exists. For this, the portion set aside must be allocated to the children, born and yet to be born, of the person disinherited, and the other statutory conditions must be met. This institution is not a general way of removing an heir from the inheritance arbitrarily.

Do the children of a person who waives also lose the inheritance?

Under Article 528 TMK, a waiver of inheritance given for consideration also takes effect for the descendants of the person who waives, unless the contract provides otherwise. The same automatic result cannot be reached for a waiver without consideration; the scope of the contract and the statutory provision must be interpreted. In a waiver in favour of a specific person, that person's inability to become an heir or the other conditions in Article 529 TMK may lead to the waiver lapsing. Article 530 TMK, under certain conditions, preserves the rights of the estate's creditors regarding transfers made in return for the waiver.

Why should disclaimer of inheritance and a waiver during life not be confused?

A waiver of inheritance is a contract subject to official form made with the decedent while the decedent is alive. A disclaimer of inheritance, on the other hand, is a separate right that the heir can exercise after the inheritance has opened. In the context of Articles 605–618 TMK, the period for disclaimer, the provision on insolvency of the estate, the nature of the disclaimer declaration and the lapse of the right to disclaim must be assessed separately. When a waiver contract is drafted, wording that would make later exercise of the right to disclaim unnecessary or describe it incorrectly should be avoided.

Implementation After Death: Opening of the Will, Executor of the Will and Estate Debts

Does a will bring about registration in the land registry automatically upon death?

Leaving a specific asset by will and appointing an heir have different legal consequences. While the heir acquires the inheritance within the regime of universal succession provided by law, the claim of the beneficiary of a bequest of a specific asset may, as a rule, be of a personal nature, to be asserted against the debtor of the legacy. For this reason, the mention of real property in a will does not mean that in every case it is registered directly in the beneficiary's name at the moment of death. The opening of the will, notification of the persons concerned, any objection and litigation, and then the land registry transaction must be planned together.

For what purpose may an executor of the will be appointed?

Within the framework of Article 550 TMK and the following articles, the appointment of an executor of the will (vasiyeti yerine getirme görevlisi) may facilitate the orderly implementation of dispositions in particular where there are many items of real property, company shares, debts and different beneficiaries. The executor's powers are not unlimited; the administration of the estate, performance of the bequests, accounting and statutory limits are taken into account. Appointing an executor does not eliminate reserved-portion rights or court supervision.

Why should debts and funeral expenses be examined before distribution?

Estate planning is not only the division of active assets. The decedent's personal debts, security interests, tax liabilities and estate expenses are integral parts of the net asset calculation. The liability of the heirs for estate debts must be assessed together with institutions such as disclaimer of inheritance and official liquidation. A company's debt, a shareholder's personal debt and surety debts must be kept apart.

Pre-Litigation Evidence, Updating and Risk Management in Asset Planning

How should the purpose of a disposition be documented?

The record of payment in a real sale, the intent to give without consideration in a gift, the performance and security arrangements in a maintenance contract, and the intentions of the parties and the form requirements in an inheritance contract should be documented from the start. Whether real property given to a child is to be set off against that child's inheritance share should be determined by an express provision, if there is one. A document trail does not eliminate claims that may arise later; it does help in the investigation of the real intent and the economic nature of the transaction.

What should be done after a new marriage, divorce, birth or change in the company?

When the family structure changes, the status as heir, the rights of the surviving spouse, the reserved-portion calculation and the purpose of earlier dispositions mortis causa may change. In the case of a new real property acquisition, a change in shareholding, residence in a foreign country or new borrowing, the legal consequences of the earlier plan should be reviewed again. Amending a will and removing an inheritance contract are not subject to the same procedure; each new transaction should be compared with the existing documents.

How are alternative legal routes and critical time limits tracked?

Limits of Court Decisions in Practice

That a will is valid does not mean the reserved portion is left unprotected

In the passage that could be accessed of the decision of the Court of Cassation 7th Civil Chamber, dated 18.04.2024, E. 2023/1170, K. 2024/2096, the rejection of the annulment claim was discussed in the context of a will in conformity with form, the support of the capacity at the date of drawing up by a health assessment, and the failure to prove the alleged defect of intent. The absence of grounds for annulment does not mean that abatement review is unnecessary where a transfer infringing the reserved portion also exists. The operative result of the decision itself and its effect on other claims must be checked separately in the full text.

The real legal transaction and form must be examined before the name of the contract

The decision of the Court of Cassation 7th Civil Chamber dated 20.11.2023, E. 2023/4439, K. 2023/5523 is an example showing that the capacity of the participants in a document concerning the transfer of an inheritance share and the applicable form provisions can change the outcome. This review shows that an inheritance contract made while the decedent is alive and a transfer of inheritance share carried out among heirs after death must not be equated.

Binding Effect, Termination and Power of Amendment in Estate Planning

Why are the removal of a will and of an inheritance contract not the same method?

Revocation of a will and making a new disposition mortis causa are examined within the framework of Articles 542–544 TMK. An inheritance contract, on the other hand, is under Articles 545–548 TMK a separate contract containing the mutually binding intents of the parties. In the removal of an inheritance contract, the agreement of the parties in official form, the exceptional unilateral grounds for termination provided by law and the possibility of breach of the contractual obligation must not be confused.

Can real property be sold or given away after an inheritance contract?

Under Article 527/2 TMK, the decedent, as a rule, continues to dispose of his or her assets. However, dispositions mortis causa and gifts that are incompatible with the obligation undertaken in the contract may, under the relevant conditions, be challenged. For this reason, making an inheritance contract does not create an automatic ban on dealing with the real property; on the other hand, the contract cannot be treated as having no protective effect at all. The subject matter of the contract, the beneficiary and the nature of the later transaction must be examined separately.

Which changes should be separately recorded in the planning document?

A new marriage or divorce, the birth of a child, the death of an earlier heir, a change in company shareholding, a new acquisition of real property, borrowing and relocation abroad may affect the reserved portion, the applicable law and the practical enforceability of the disposition. In an update, the old and new documents should be expressly compared and the provisions that remain in force and those that are removed should be stated. Secret and mutually contradictory documents may cause problems of proof later.

Protection of the Consideration for Waiver of Inheritance and of Estate Creditors

When does a waiver in favour of a specific person lapse?

Article 529 TMK provides that a waiver made in favour of a specific person lapses if that person cannot become an heir. Where no specific person is named, the arrangement in favour of the descendants of the nearest common ancestor under the law, and their inability to become heirs, are assessed specially. The mere fact that a waiver contract has been signed does not guarantee in every case that the waived share will pass to the same person.

Is what the person who waives receives fully protected against the estate's creditors?

No. Article 530 TMK provides, where the estate cannot cover its debts and the debts are not paid by the heirs, for liability, limited to the amount of enrichment at the time the inheritance opened, in respect of transfers received in return for a waiver within the five years before the inheritance opened. This does not mean that all consideration will be recovered in every waiver; the conditions of the law must be assessed together.

Estate Planning that Protects the Reserved Portion and the Stages of Calculation

In what order should the net estate and the disposable portion be assessed?

Claims and debts arising from the matrimonial property regime, the assets and liabilities of the estate, any earlier gratuitous transfers and the status of the heirs with reserved portions must not be confused. Different calculation steps may be required under Articles 507–509, 560–571 and 669 et seq. TMK. The high value of an asset does not by itself show that the reserved portion has been infringed. The date on which the inheritance opened, the valuation principles, the statutory set-offs and the type of disposition are decisive.

Why is a claim for abatement not the complete annulment of an inheritance contract or a will?

Abatement is aimed at reducing, to the statutory extent, the part of a transfer that may be valid which interferes with the reserved portion. The annulment of a disposition mortis causa, on the other hand, is examined separately in terms of the grounds of capacity, intent, unlawfulness or immorality and form under Article 557 TMK. The starting points and outer limits of the time limits under Article 559 and Article 571 TMK are also different. For this reason, the legal ground, the claimant's standing and the relief sought must be framed correctly in the statement of claim.

Planning for Assets in Foreign Countries and Digital Accounts

Can real property in Türkiye and assets abroad be managed by the same document?

The provisions of Law No. 5718 (MÖHUK) on succession and real property must be assessed together with the citizenship of the parties, their habitual residence, the country where the real property is located and the relevant international conventions. The form of a will or power of attorney made in a foreign country, the applicable law and the registration conditions in Türkiye must also be investigated separately. An arrangement valid in Türkiye does not automatically produce the same result in another country for every transaction.

What limits does planning have in respect of digital accounts?

The economic value of a digital asset that may form part of the inheritance is not of the same nature as personal communications, privacy and access passwords. For copyrights, online account contracts, electronic money and crypto assets, entitlement, access, tax and personal data conditions must be assessed separately. Sharing passwords with third parties is not recommended; a secure inventory and an authorized application should be preferred.

Conclusion

Good estate planning does not mean looking for the easiest way to transfer assets to a single person; it means arranging together ownership, personal security, succession, the reserved portion, company continuity and the risk of future disputes. The regime for amending a will and an inheritance contract, the economic nature of a gift and of a real sale, and the timing and parties of a waiver of inheritance and of a transfer of inheritance share are all different from one another. Before a contract or disposition is prepared, the statutory form, capacity and the family and asset inventory must be assessed.

Frequently Asked Questions

Is a will sufficient to leave a house to one of the children?

A will may be a suitable instrument; however, form, capacity, ownership of the real property and the effect on reserved portions must be assessed. A will alone does not transfer title to real property during the testator's lifetime.

Are an inheritance contract and a will the same?

No. The binding effect of a contract and its requirements as to parties and form differ from those of a will. The distinction in capacity between Articles 502 and 503 TMK is particularly important.

Do siblings have a reserved portion?

Under current Turkish law, a sibling has no reserved portion. However, status as a statutory heir is another matter.

Is a gift from parents to a child always equalized?

The special rule of Article 669 TMK on gratuitous transfers to descendants and any express intent of the decedent to the contrary must be assessed.

Does a contract of maintenance until death prevent all actions by the heirs?

No. The genuine care relationship, the form and capacity requirements and claims of simulation may be examined in the specific case.

Can real property be transferred while a usufruct is reserved?

It is possible with an appropriate official transaction and registration in the land registry. The scope of the rights and their termination must be determined separately.

Are an action for annulment of a will and an action for abatement the same?

No. Annulment relates to grounds of invalidity; abatement relates to reducing specific transfers that infringe the reserved portion.

Does a notarial transaction end all validity problems in estate planning?

No. The official form reduces some risks; defects of intent, capacity and statutory limitations are assessed separately.

Sources and legal bases

1. Law No. 4721, Turkish Civil Code, in particular Articles 495–599, 652, 669–678 and the relevant provisions on matrimonial property regimes. Official legislation access.
2. Law No. 6098, Turkish Code of Obligations, in particular the provisions on gifts and the contract of maintenance until death. Official legislation access.
3. Law No. 5718 on Private International and Procedural Law. Official legislation access.
4. Court of Cassation 7th Civil Chamber, 20.11.2023, E. 2023/4439, K. 2023/5523.
5. Court of Cassation 7th Civil Chamber, 18.04.2024, E. 2023/1170, K. 2024/2096.
6. Court of Cassation 16th Civil Chamber, 12.07.2011, E. 2011/4418, K. 2011/4222.
7. Law No. 4721, Turkish Civil Code, Articles 510–513, 527–530, 550–559 and 605–618. Official text.