Partition of the Inheritance and the Estate

What we do in this area

Most inheritance files begin with the same picture: the deceased left no will, and the heirs do not know how to divide the real estate and bank accounts. Under this heading the office takes on the process of dividing the estate, from obtaining the certificate of inheritance to determination of the estate, and from renunciation of inheritance to drafting the partition agreement and conducting the partition action. Infringement of the reserved share and transfers made by the deceased during their lifetime are the subject of separate pages: reserved share and action for abatement, collusive transfer by the deceased.

Main work carried out:

• Obtaining the certificate of inheritance (veraset ilamı) and annulment of an incorrect certificate
• Determination of the estate and applications for measures to protect the estate (Article 589 et seq. of the Turkish Civil Code, TMK)
• Applications for renunciation of inheritance and the official inventory
• Partition agreements and agreements transferring a share of the inheritance
• Partition action and dissolution of co-ownership of inherited real estate

The community of heirs: joint ownership

On the death of the deceased, the estate passes to the heirs by operation of law and as a whole (Art. 599). Where there is more than one heir, a community of heirs arises between them and joint ownership (elbirliği mülkiyeti) is established over the assets of the estate (Art. 640). The practical consequence is this: until partition, no heir can alone sell or let a property in the estate or alone withdraw money from a bank account; every transaction requires the unanimous consent of the heirs. Any heir may ask the civil court of peace to appoint a representative to manage the community.

Legal succession is determined by the parentela system: first the descendants; if there are no descendants, the mother and father and their descendants; failing them, the grandparents and their descendants (Arts. 495 to 497). The surviving spouse receives one quarter, one half or three quarters of the estate depending on the parentela with which they inherit; if there is no parentela at all, the whole inheritance passes to the spouse (Art. 499). The certificate of inheritance showing these shares is obtained from a notary for legal succession that can be established from the civil registry records, and from the civil court of peace in files that require adjudication, involve a will or contain a foreign element (Art. 598).

Determination of the estate and renunciation of inheritance

Before partition, it must be known what is to be partitioned. Through an action for determination of the estate, the real estate, accounts, receivables and debts of the deceased are established by the court; at the request of any heir, protective measures such as sealing and an inventory may be ordered (Art. 589 et seq.). This step also shows whether the estate is insolvent.

The heirs are jointly and severally liable for the debts of the estate not only with the estate but also with their personal assets (Art. 641). In files where the debts exceed the assets, renunciation of inheritance comes into play: for legal heirs, the period for renunciation is three months from the date they learn of the death of the deceased (Art. 606). The declaration of renunciation is made to the civil court of peace, in writing or orally, unconditionally and without reservation (Art. 609). An heir who does not renounce in time, or who appropriates estate assets or becomes involved in matters going beyond ordinary administration, loses the right to renounce (Art. 610). Where the insolvency of the estate was evident or officially established at the date of death, the inheritance is deemed renounced (Art. 605/2); rather than relying on this presumption, however, filing a declaration of renunciation in time keeps the file out of dispute. Where the debts are not fully known, an official inventory may be requested within one month, following the renunciation procedure (Art. 619); acceptance under the official inventory generally limits liability to recorded debts, but Article 629 provides exceptions, including omitted claims attributable to circumstances outside the creditor’s fault and claims secured on estate assets.

Partition agreement and partition action

If the heirs can agree, partition is carried out by a written agreement (Art. 676); the agreement determines who receives which assets of the estate and the equalisation payments, and real estate is registered at the land registry accordingly. The transfer of an heir's share to another heir requires written form, and its transfer to a third party who is not an heir requires a deed drawn up by a notary (Art. 677). Dispositions made by the deceased to descendants during their lifetime, such as a dowry, start-up capital or release from debt, are subject to equalisation in the partition unless otherwise stated (Art. 669).

Where there is no agreement, any heir may bring a partition action before the civil court of peace (Art. 642). The court divides the assets of the estate into as many lots as there are shares; lots are drawn among heirs who cannot agree, and an asset that cannot be divided without a significant loss of value is allocated to one heir or sold and the proceeds divided (Arts. 650, 651). The family home and household goods may be allocated to the surviving spouse at their request (Art. 652). Where only the partition of real estate is sought, the action for dissolution of co-ownership (izale-i şuyu) is the more common route; in disputes concerning the partition of movable and immovable property and the dissolution of co-ownership, applying to a mediator before filing the action is a precondition for the action (Article 18/B of Law No. 6325). The competent court is the court of the last domicile of the deceased (Art. 576); files outside İzmir are also followed under this rule.

For details of how we work: How we work.