Death Abroad and Handwritten Wills: A Roadmap for the Heir

If the deceased died abroad but his/her last place of residence was in Turkey, Turkish courts are competent. Inheritance and inheritance are subject to the national law of the deceased, i.e. the provisions of the Turkish Civil Code.

The process starts with the application to the Civil Court of Peace in the last place of residence of the deceased and the request to open the will . The death certificate and the handwritten will are submitted to the court. The court invites all known heirs to a hearing, reads the will and gives them the opportunity to submit any objections or statements against the will. With the opening of the will, the heirs are officially informed of their legal rights and the last wishes of the deceased.

After this stage, a certificate of inheritance (certificate of inheritance) must be obtained from the Civil Court of Peace or a notary public. This document is an official document showing who are the heirs and in what proportions and is mandatory for transactions in institutions such as land registry deeds and banks.

As in the case of our client, leaving all assets to the spouse in the will does not completely eliminate the rights of the child, who is the sole heir. The Turkish Civil Code provides that the heirs (children), spouse and parents reserved share right under protection. The reserved share is a certain proportion of the heir's legal inheritance share, which cannot be touched even by a will or other testamentary disposition.

• Reserved share for descendants (children):

Half of the legal inheritance share (1/2).
After the opening of the will and the receipt of the certificate of probate, the heir husband and son can of course come to an agreement. However, this agreement does not mean that the will is completely ignored. If it is aimed to transfer all the property to the spouse in accordance with the will, the son, who has the right to a reserved share, must consent to the registration in favor of the spouse in the title deed or other official institutions by accepting that he waives this right or receives a price corresponding to this right.

The person to whom a certain property is left in the will or to whom an heir is appointed (in our example, the spouse), if the other heirs (son) do not fulfill this will will enforcement (execution) case the testator files a lawsuit. This action ensures that the contents of the will are legally enforced and the property is registered in the name of the testator.

When this lawsuit is filed, the son, the heir whose reserved share has been violated, has two main options:

1. Filing an Equalization Lawsuit: Against the enforcement of the will, the testator may file a lawsuit for equalization claiming that his/her reserved share has been violated. In this case, the court decides that the will is valid, but the part exceeding the reserved share is invalid (annulment). The assets are divided between the spouse and the son in such a way that the son's reserved share is protected.
2. Waiving the Case: The child heir may waive the action for the enforcement of the will. This waiver means that he/she will not object to the execution of the will. However, this does not mean that he/she waives his/her right to reserved share. The waiver is specific to the enforcement action. The heir reserves the right to file a separate equalization lawsuit later on within the legal time limits.

The emergence of a new heir, such as an unrecognized child of the deceased born out of wedlock, may radically change the current situation.

• Effect of Decisions: Previous decisions on probate, opening of a will or enforcement of a will are not binding for the new heir. Because this heir was not a party in those cases. The new heir can prove his/her heirship by filing lawsuits such as annulment of the certificate of inheritance and determination of paternity.
• Status of the Waiving Child: The child who has waived the enforcement action may participate in the lawsuits filed by the new heir, such as the annulment of the certificate of inheritance, as an interested party. Because their inheritance shares will be redetermined. His/her previous waiver does not affect his/her rights in this new case.

Suppose that in a will enforcement proceeding, the court decides to preserve the reserved share in favor of the child. Even if the title deeds were previously executed in the name of the spouse, this decision entitles the child to a claim against the spouse.

• Time to Enforce a Judgment: Court decisions (judgments) can be enforced within 10 years , which is the general statute of limitations. The heir child can obtain his/her rights by enforcing the judgment within 10 years after receiving it or by filing a deed cancellation and registration lawsuit.
• Right not to exercise the decision: The child does not have to exercise this right. He/she may not execute the decision and wait. This may be a strategic choice. Keeping the judgment means that his/her reserved share right is registered by the court.
• The Effect of Waiting: The fact that the child waits without executing the judgment strengthens his/her legal position in case another heir appears later. This is because it is already established by a court decision that some of the assets actually belong to the child. In the lawsuits to be filed by the new heir, this situation is taken into account when calculating the probate (inherited assets) and it is legally documented that not all of the assets on the spouse belong to him/her.

As can be seen, circumstances such as death abroad and the existence of a handwritten will make inheritance processes multi-layered. The heirs' ability to fully protect their rights depends on taking the right legal steps at the right time. The enforcement of the will, the equalization lawsuit to be filed for the protection of the reserved share and the consequences of possible waivers are strategic decisions that should be evaluated as a whole. In such complex processes, it is essential to provide our clients with in-depth analysis and personalized strategic guidance beyond standard legal processes in order to prevent loss of rights.