Inheritance Law: Heirship and the Reserved Share

After the death of a loved one, most families have to deal with inheritance procedures while also trying to cope with their grief. Questions such as who the heirs are, whether the will that was left behind is valid and how the reserved share is to be protected make the process difficult both emotionally and legally. Especially when there have been prior transfers within the family or dispositions made through a will, disputes among the heirs are a common occurrence.

Inheritance law aims to protect the rights of heirs through institutions such as the class (zümre) system that determines who receives how large a share, the reserved-share rules and the abatement (tenkis) action. This article takes a practical look at topics such as the order of statutory heirship, the types of wills, reserved-share ratios, the abatement action, collusive transfer (muris muvazaası), disclaimer of inheritance and the certificate of inheritance, and draws attention to the common mistakes encountered in practice.

Who Are the Statutory Heirs and How Does the Class System Work?

In Turkish inheritance law, if a person has not left a will, the estate is distributed according to the class (zümre) system set out in the law. The class system divides heirs into groups according to their degree of proximity, and as long as there is an heir in an earlier class, the next class is not reached. This ordering is designed to clarify the heirship relationship within the family.

• First class. The descendants of the deceased, that is, their children and the children of those children. If one of the children has died, that child's share passes to their own children.
• Second class. The mother and father of the deceased and their descendants, that is, siblings and nephews and nieces. If there is no heir in the first class, this class comes into play.
• Third class. The grandparents of the deceased and their descendants, that is, uncles, aunts (paternal and maternal).
• Surviving spouse. The spouse is always an heir, in varying proportions depending on which class they inherit alongside, and generally takes a share together with the other classes.

The relationship of adoption is another matter that affects statutory heirship; an adopted person is deemed a statutory heir of the person who adopted them. In practice, when there is uncertainty about who the heirs are, the correct determination of civil-registry records and family ties is of great importance. Because the class system appears complex, calculating shares according to the specific family structure generally requires a legal assessment.

How Many Types of Will Are There and Which Is Safer?

If the deceased wishes to make dispositions according to their own will, outside the order of statutory heirship, they may draw up a will. The law defines three different types of will, and the validity conditions of each are different. A will that is drawn up incorrectly may become the subject of an annulment action, despite reflecting the true intention of the deceased.

• Public will. Drawn up before a notary in the presence of two witnesses, it is preferred in practice as the safest method because the risk of formal defects is low.
• Holographic will. It must be written by the deceased entirely in their own handwriting, dated and signed; texts written by typewriter or computer are generally deemed invalid.
• Oral will. An exceptional method used only in extraordinary situations such as danger of death, made before two witnesses and subsequently required to be reported to the official authorities.

For a will to be deemed valid, the deceased must have the capacity of discernment. In practice, wills drawn up especially by persons of advanced age or with health problems may give rise to disputes among the heirs over the capacity of discernment. For this reason, paying attention even to the form of the will is beneficial in terms of preventing annulment actions that may be brought later.

What Is the Reserved Share and Who Benefits from This Right?

The reserved (forced) share is the minimum share of the estate that the law sets aside for certain heirs, which the deceased cannot take away even through a will or other dispositions upon death. The purpose of this arrangement is to prevent the deceased from depriving their close relatives of the estate entirely. For heirs who do not hold a reserved share, on the other hand, the deceased may exercise their freedom of disposition more broadly.

• Descendants. Children and grandchildren hold a reserved share amounting to a certain proportion of their statutory share of the estate.
• Mother and father. The parents of the deceased also hold a reserved-share right over a portion of their statutory share.
• Surviving spouse. The spouse, too, holds a reserved-share right over a significant part of their statutory share, depending on the circumstances.

No reserved share is provided for siblings and more distant relatives; these persons can only take a share in their capacity as statutory heirs and to the extent that a will does not prevent it. Because reserved-share ratios can vary according to which class the heir inherits alongside, the ratio must be calculated correctly in the specific case. The deceased may deprive an heir holding a reserved share of the estate only where one of the limited grounds for disinheritance listed in the law exists, and only by expressly stating this in their will.

When and How Is an Abatement (Tenkis) Action Filed?

If the deceased has drawn up a will in a manner that impairs reserved shares, or during their lifetime has made gratuitous transfers to some of the heirs or to third parties, the heirs holding a reserved share may seek their rights by filing an abatement (tenkis) action. The abatement action is a type of action that ensures that a transfer infringing the reserved share is reduced down to the reserved-share limit.

This action must generally be filed within a certain period after the death of the deceased, running from the date on which the opening of the succession and the disposition became known; if the time limit is missed, a loss of rights may occur. In an abatement action, the estate as at the date the succession opened is first determined, then the reserved-share ratios are calculated and it is established which transfers are subject to abatement. In practice, because the gifts made by the deceased during their lifetime and the dispositions upon death must be assessed together, abatement actions can be technical and time-consuming. Against whom the action is to be filed varies according to the persons who benefited from the transfer, and for this reason the determination of the parties must be made carefully.

How Is a Collusive Transfer (Muris Muvazaası), i.e. the Concealment of Assets from the Estate, Proven?

Collusive transfer (muris muvazaası) refers to transactions in which the deceased, with the actual intention of depriving an heir of their inheritance right, presents what is in reality a transfer of the nature of a gift as though it were a sale. In practice, it is frequently alleged that an immovable was transferred to an heir or a third party at a low price or with no consideration at all, but that the true purpose was to deprive the other heirs of the estate.

In the action brought to annul such transactions, it is not the reserved-share rules but the invalidity of the contract on the ground of collusion that is asserted. The burden of proof lies with the heir asserting the claim, and matters such as whether the transfer was made at the true value, the economic situation of the parties, the timing of the transfer and the relationship between the deceased and the transferee are generally assessed together. By their very nature, collusive-transfer actions are actions in which the gathering of evidence and witness statements are important; for this reason, determining the litigation strategy according to the particular features of the specific case makes a great difference.

In What Situations Is Disclaimer of Inheritance Preferred?

An inheritance may consist not only of rights but also of debts. If the debts of the deceased exceed their assets, the heirs may avoid being liable for these debts by disclaiming the inheritance. Disclaimer of inheritance is a unilateral declaration of intent, subject to a time limit, that terminates the heir's capacity as heir.

• Actual disclaimer. Within the period provided by law, running from the date on which they learned that the succession had opened, the heir may disclaim the inheritance by applying to the civil court of peace (sulh hukuk mahkemesi).
• Presumed disclaimer. If it was clearly evident or officially established that the deceased was insolvent as at the date of death, the inheritance is deemed to have been disclaimed.
• The situation when the time limit is missed. If the disclaimer period is allowed to pass, the heir may also become liable for the debts of the deceased; for this reason, the debt position of the estate must be investigated without delay.

When deciding whether or not to disclaim an inheritance, the actual assets and the debt burden of the estate must be set out clearly. In some situations, where the heirs cannot be sure whether the estate is insolvent, they may request the court to carry out an official liquidation of the estate. This path allows the heirs to clarify the position of the estate without putting their personal assets at risk.

Why Is a Certificate of Inheritance Necessary and How Is It Obtained?

A certificate of inheritance (veraset ilamı) is an official document showing a person's heirs and their shares of the estate. A certificate of inheritance is required to be presented for many procedures, such as withdrawing money from bank accounts, carrying out transfer transactions at the land registry, or transferring a vehicle. Without this document, it is generally not possible for heirs to actually exercise their rights in the estate.

A certificate of inheritance can be requested from the civil court of peace, and in cases where the heirship situation is clear it can also be obtained from a notary. During the application, the heirs and their shares are determined on the basis of the civil-registry records. Where an heir who emerges later or a share that has been incorrectly determined is at issue, it may be necessary to file an action for the annulment and correction of the certificate of inheritance. For this reason, it is advisable to carry out a careful examination before applying for a certificate of inheritance, especially in complex family structures or in families where situations such as adoption or an unrecognized child exist.

What Steps Should Be Taken in Inheritance Disputes?

The inheritance process is an area open to disputes from time to time, even where there is a strong relationship of trust among the heirs. The full determination of the estate, the correct identification of the heirs, examination of the validity of any will, and carrying out the reserved-share calculations are important for the process to proceed soundly. In practice, when agreement cannot be reached among the heirs on the division, the dissolution of the co-ownership through an action for the dissolution of co-ownership (izale-i şuyu) may also come onto the agenda.

In processes of this kind, obtaining legal support at an early stage can prevent both a loss of time and further damage to the relationships among the heirs. Av. Aydın guides heirs in inheritance-law matters such as statutory heirship, wills, the reserved share, the abatement action, collusive transfer and disclaimer of inheritance in Konak, İzmir. You can reach the office at Milli Kütüphane Cd. İ.Tepeköylü İş Merkezi No:17/105, Konak/İzmir, or obtain information 24/7 by calling 0553 595 67 82.