How Are Assets in Türkiye Taken Over by a Foreign Heir Who Is a Minor or Under Guardianship?

A foreign heir who is a minor or under guardianship can acquire assets in Türkiye. The real question is who exercises the right, and with what authority. Parents, a guardian and a curator (kayyım) are not the same kind of representative. The authority or court permission required for the transfer, division, disclaimer and sale of an inheritance varies with the type of transaction. [1, 2]

Capacity, custody and guardianship are examined separately

Under the Turkish Private International and Procedural Law Act (MÖHUK), capacity to hold rights and capacity to act, custody (velayet) and guardianship (vesayet) are subject to different connecting rules. A foreign court’s decision on representation and any applicable international conventions are assessed separately. The child’s nationality and habitual residence must not be overlooked by looking only at the decedent’s nationality. [2]

That Turkish law applies to inherited immovable property in Türkiye does not mean that a foreign custody or guardianship document is automatically valid. The nature of the decision, its effect in Türkiye and, where necessary, the recognition or protection process are examined. An apostille does not broaden the scope of the authority to represent.

The curator in a conflict of interest

A parent may have interests that differ from the child’s in a division that concerns both the parent’s own inheritance share and the child’s share. Merely belonging to the same family does not remove the conflict. Whether a curator for representation is needed under Article 426 of the Turkish Civil Code (TMK) is assessed on the specific transaction. [1]

For example, if the house is to be left to the mother and the child is to be paid compensation, the adequacy of the value and of the payment matters. This does not mean that a curator is automatically required in every case of co-heirship; the genuine conflict of interest and the nature of the transaction are examined. Taking the child’s money into the representative’s personal account also raises a separate accounting and protection problem.

Transactions requiring permission under guardianship

TMK Article 462 regulates the permission of the guardianship authority for transactions such as the purchase and sale of immovable property, dispositions beyond ordinary management, and the division of an inheritance or the transfer of an inheritance share. Article 463, for certain transactions such as accepting or disclaiming an inheritance, also requires the permission of the supervisory authority in addition to the guardianship authority. These two layers of permission must not be confused. [1]

A child under custody and a person under guardianship cannot be subjected mechanically to the same permission regime. The type of statutory representation, the conflict of interest and the specific disposition are assessed together. Statements such as “the parent signed, so everything is in order” or “two court permissions are needed for every transaction involving a child” are not accurate.

Document file

All annexes of the document and its Turkish translation are prepared. If a foreign decision grants only authority over personal care, it should not be assumed to include authority to sell assets. If there is a time-limited or restricted representation decision, it must be in force on the date of the transaction.

An indebted estate and the disclaimer period

The inheritance of a minor or a person under restriction may be indebted. Disclaimer, the official inventory and liquidation options are examined without delay. It should not be assumed that the period stops by itself while a representative is being appointed or a permission process is pending. The date of learning, the state of representation and, where necessary, a court request concerning the period are recorded separately. [1]

Selling the protected person’s property or paying debts may affect the strategy of acceptance or disclaimer. Protecting the estate’s property is distinguished from a disposition that goes beyond ordinary management. Whether to disclaim an inheritance is decided not by looking at the amount of the debt alone but through an examination of the whole estate and of liability.

Practice at the bank, the land registry and in division

The institution compares the representation decision and the special permission with the transaction. If the court permits a sale, the price, the sale procedure and the conditions of the account into which the money is to be paid are followed. A different asset or a different transaction outside the scope of the permission cannot be carried out. In a division, the value left to the child and, if any, the security of the compensation must be clear.

Sending the money abroad is not the same as leaving it to the representative’s personal use. The account belonging to the rightsholder and, where necessary, the restricted-use conditions are preserved. The guardianship account and the reporting obligations may continue after the sale. [1]

How is the scope of the representation document read?

It is not assumed that a person who is entrusted with the child’s care in a foreign decision is also authorized to sell the house in Türkiye. Personal care, management of assets and certain dispositive powers may be separate. The duration of the decision, whether it is in force, its annexes and any condition of permission from another authority are read together. Certification and translation make the document usable; they do not create broader authority. [2]

The parentage or appointment relationship between the child’s identity and the representative’s identity is documented. If the representative has changed, the old decision should not be used. If several representatives are required to act together, a single signature may not suffice. A request by the institution for additional documents may therefore concern not only the inheritance share but also the authority to sign. The institution should be asked in writing which authority it considers missing.

In which transaction does a conflict of interest arise?

That a mother and a child hold shares in the same inheritance does not show that there is a conflict in every transaction. However, an opposing interest may arise in determining the amount to be paid to the child in return for leaving the house to the mother. The need for a curator for representation under TMK Article 426 is examined according to the specific transaction. The curator’s duties are also limited to the scope set by the decision. [1]

A valuation report does not by itself remove the conflict problem. The capacity in which the representative signs, the security for the child’s claim and the payment account are determined. If the same person is both the buyer and the seller on the child’s behalf, reliance on a general power of attorney alone should not be treated as sufficient. The form of the transaction and the permissions must be completed.

How is the economic benefit explained in a permission request?

The file may contain the current value of the asset, its continuing expenses, the reason for the sale or division and the method of protecting the price. “The family wants it this way” does not by itself explain the child’s interest. If the sale of a property that produces no income and has high maintenance costs is being considered, expense documents and alternatives are shown. It must be clear that the price will not be used for the representative’s personal debt.

In Turkish guardianship law, the different permissions under TMK Articles 462 and 463 are assessed according to the type of transaction. A child under custody is not automatically subjected to the same regime. In a foreign representation relationship, the applicable law and the protective measures to be obtained in Türkiye are examined separately. Generalizations such as “the same two permissions for all minors” or “no control at all over the parent” are not correct. [1, 2]

Managing time limits in an indebted inheritance

The investigation of debts should not be postponed during representation and permission procedures. Disclaimer, the official inventory and liquidation options are assessed separately. In Turkish law, the general three-month period for disclaimer is different from the one-month period for requesting the official inventory. The starting point, the date of learning and representation problems are calculated in the specific file. [1]

An expense necessary to protect the asset is not the same as selling the asset and using the proceeds for personal needs. Under TMK Article 610, the effect on the right of disclaimer of dispositions beyond ordinary management is investigated. The position of the protected person in the face of the representative’s unauthorized conduct may also be examined separately. The purpose and scope of any disposition made while a decision on disclaimer is pending should be recorded. It should not be assumed that a permission application automatically stops all time limits.

Payment and subsequent accounting

If money is left to the child, the account being in the rightsholder’s name, the conditions of use and, if any, the court’s instruction are followed. Sending the money abroad does not mean that the representative is allowed to use it freely in a personal account. Transfer costs and exchange-rate differences are shown in the child’s account.

At closing, the permission decision alone is not enough. It is verified that the permitted asset was transferred at the correct price, that the money was deposited into the stated account and that the required reports were submitted. If the person has come of age or the guardianship has ended, the handover of the asset and of the accounts is addressed separately. The purpose of the transaction is to protect the rightsholder’s assets before it is to ease representation.

What does the 1996 Hague Convention change for a foreign child?

The right of inheritance and the protection of the child’s property

The 1996 Hague Convention on the Protection of Children does not determine the inheritance share; the subject of succession is outside its scope. However, the management, protection and disposition of the child’s property and the powers of the representative may fall within it. It applies from birth until the age of 18. Its date of entry into force for Türkiye is February 1, 2017; in the specific relationship, the other State’s status as a party, the temporal scope and any reservations are also checked. [3, 4]

Recognition, enforcement and Türkiye’s reservation

For protective measures within the Convention’s scope, Article 23 regulates recognition by operation of law, and Article 26 regulates the enforcement process where necessary. It therefore cannot be said that every foreign custody decision requires a general recognition action automatically. The grounds for refusal and the scope of authority of the document are still examined. Türkiye has reserved the right to take protective measures concerning a child’s property located in its territory and not to recognize a foreign measure or parental responsibility with respect to that property where it is incompatible with its own measures. [3, 5]

In a specific file, a protection decision for a child, a guardianship decision for an adult and a certificate of inheritance should be classified separately. The Convention on children does not apply automatically to the guardianship of adults. In this way, recognition of the authority to represent and determination of the inheritance share in Türkiye are not mistaken for the same transaction.

A practical check of permission and representation under Turkish law

The special consequence of a conflict of interest in custody

Under TMK Article 345, a transaction between the child and the mother or father, or between the child and a third party for the benefit of the parents, by which the child would incur a debt, depends on the participation of a curator and the approval of the judge. This special provision is considered together with the examination of a curator for representation due to a conflict of interest under Article 426. The family’s agreement on a sale or division does not remove the child’s need for independent representation. [1]

The competent authority and urgent protection

In the Turkish guardianship system, the guardianship authority is the civil court of peace (sulh hukuk mahkemesi) and the supervisory authority is the civil court of first instance (asliye hukuk mahkemesi). Where there is a foreign element, international conventions are considered first; to the extent it applies, MÖHUK Article 42 regulates the connecting factor of the place of residence for a foreigner without a domicile in Türkiye or, if not resident in Türkiye, the place where the person’s assets are located. It should not be assumed that, because the child’s property is in Türkiye, all representation disputes will be resolved in the same court. [1, 2]

If there is a risk of loss of the asset or of the price being transferred to a personal account, the need for protection is explained with concrete documents. Account activity, the land registry record, sale correspondence or a limitation in the existing representation decision help in this assessment. A permission application by itself does not block a bank account or annotate the land registry; the necessary protection must be requested separately. When the transaction is completed, the conditions of the permission decision, the sale document and the payment account should be compared to show that the value belonging to the protected person has actually been protected.

Conclusion

In the file of an heir who needs protection, correct representation and permission suited to the transaction must be established before speed. When entitlement, conflict of interest, valuation and payment are checked separately, the transfer can be completed for the benefit of the person.

Related articles: Disclaimer of Inheritance: Application Procedure, Time Limits and Protection from Estate Debts; Liability for Inheritance Debts: Enforcement Proceedings Against Heirs and Available Protections; Recognition and Enforcement (Tenfiz) in Türkiye of a Foreign Court’s Custody Judgment; How a Foreign Heir Obtains a Certificate of Inheritance in Türkiye: Documents and Court Procedure

Frequently Asked Questions

Can a foreign child be an heir in Türkiye?

Yes; the conditions of inheritance and of acquisition by foreigners are assessed, and representation is assessed separately.

Can the parents carry out every sale alone?

The type of representation, the conflict and the need for permission must be examined.

Can a guardian disclaim an inheritance?

Under the Turkish guardianship regime, the relevant permissions and the disclaimer period are considered together.

Is an apostille enough for a foreign guardianship decision?

No. The legal effect of the decision in Türkiye, the scope of authority and the applicable convention are examined separately. For a child protection measure, recognition by operation of law may be possible under the 1996 Hague Convention; enforcement and Türkiye’s reservation on property are assessed separately.

Sources

[1] Law No. 4721, Turkish Civil Code

[2] Law No. 5718 on Private International and Procedural Law

[3] HCCH, Convention of 19 October 1996 on the Protection of Children, Arts. 2–5, 23, 26, 55

[4] HCCH, 1996 Convention status table (parties and entry into force)

[5] HCCH, Türkiye’s declarations and reservations, 7 October 2016