A Last Will & Testament - Turkey12th April 2016
A Last Will & Testament is a legal document that records and communicates a person’s final wishes, as pertaining to possessions and dependents. This is a legal declaration by which the testator (the person creating the Last Will & Testament), names one or more persons to manage their estate and provide the distribution of their property upon their death.
As an expat in Turkey you may already administer a Will in your home country. Unfortunately this may not cover you for any property, which you own in Turkey. If you have not created a valid Will, upon your passing the Turkish Government will decide on how your property in Turkey is distributed.
The Law in Turkey:
There is no legal requirement to say that a Will must be in writing, but it is encouraged as that leaves less ground for anyone to contest once the testator has passed. Anyone over the age of 15 can execute a Will if they can demonstrate that they possess fair judgment, and have the ability to understand the consequences of what they are doing.
In practice a formal will is created by public notaries where they are documented and signed by the testator. At the time of creation there must be present two witnesses who are unrelated to the testator. Witnesses must be deemed adults and legally capable. The Turkish Civil Codes sets out what it deems to be an adult:
The automatic age of capacity is 18. However, a person can be deemed an adult by acquiring the age of capacity by marriage. A person under the age of 18 can marry with consent of their parents at which point they will be recognized as adults by the Turkish legal system (17 for men, & 15 for women).
The Courts can also decide to recognize a person to be legally an adult even if they have not reached the age of 18.
The testator and witnesses must be of sound mind in that they must understand the consequences of what they are agreeing and what they are being witness to.
Once the Will is created the original document will be kept at the public notary at which it was executed.
Are Only Official Will Recognized in Turkey:
The simple answer is no. There are three types of Wills, which can be recognized as legally binding:
The first is the official Will.
Holographic Wills are completely created by the testator and are usually created with the testator’s own handwriting. They are not notarized or witnessed and could even be kept secret. The problem with this type of `will is that they can be easily contested on various grounds.
Oral Wills can be executed only in exceptional circumstances. At the time of creation it must have been impossible to create either an official or holographic `Will. There are conditions to whether or not the Courts would accept an oral Will; the testator must have been forced to create such a Will due to war, natural disaster or terminal illness. In additional it is required for there to be present two witnesses who must document the testament and apply to the court for its recognition as soon as possible.
Under the Turkish law of succession the Courts apply the Parental System.
If you are married at the time of passing, your assets in Turkey will be distributed along the following lines:
The matrimonial regime provided for by the Turkish Civil Code dated 22 November 2001 provides that all assets (except personal assets) and assets acquired during marriage are considered as jointly owned. If one of the spouses dies, the matrimonial regime will be liquidated before the estate is determined. The surviving spouse has the right to demand liquidation and determination of the assets and he/she is able to designate their share within the marriage.
As matrimonial assets are deemed to be owned equally, the surviving spouse will retain their 50% of the assets. Under Turkish laws the first statutory heirs are the offspring of the deceased whom would receive the remaining 50% of the property in equal shares.
Second in line to be heirs are the parents of the deceased and their offspring, and the third in line to be heirs are grandparents and their offspring.
If you are not married at the time of passing:
The same hierarchy as if you were married would apply except your partner would not have any claim to your property.
As foreigners in Turkey, regardless of whether or not you have administered a Will in another country, your property in Turkey may not be covered. This mans that without a Turkish will, the Turkish state will decide how your property is ultimately divided.
Law of Succession Where the Subject is a Foreigner:
Article 43 of the Law of International Private Law and Procedure (IPLP - The Law No. 5718 titled “International Private Law and Procedure” was adopted on 27 November, 2007, and provides that lawsuits of foreigners concerning succession should be resolved by the Court in the last place of domicile of the deceased. However, Article 54/1b provides limitation in regards to immoveable goods.
If you are a foreigner and you own immovable goods, which is likely to be property then the succession laws of Turkey apply.
Written by Ayse ERGEN - YellAli
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