Prepared by The Foreign Citizens Advice Centre
In Turkey, as in the UK, Ireland and elsewhere, non-profit Citizens Advice Centres are assuming an ever- increasing role in the area of consumer advice and protection. With that in mind and as a benefit of recent increases in local funding, we are now able to put together a series of fact sheets coupled with practical support on a wide range of important issues affecting foreign citizens who have acquired, or are planning to acquire, any kind of assets in Turkey.
Fact sheet on Inheritance in Turkey.
In very simple terms, Turkish inheritance laws are such that legal spouses and blood relatives have an automatic right to claim the assets of a deceased person according to a strict formula written into those laws.
As much as you may wish to choose the beneficiaries of your estate and the share of that estate that each one of them receives, it is not possible to do that currently with assets based within The Republic of Turkey except by following the potentially costly and time-consuming process given in greater detail below.
Some simple facts (current at the time of printing).
Once a Turkish institution of any kind becomes aware of the death of a person registered as an asset holder with them, that asset is frozen and placed under the guardianship of the state.
In the matter of immovable property, the Land Registry will make a note on the title documents indicating that the asset owner has passed away and transfer of that asset can then only take place with permission from the court.
In the case of financial assets, banks will take the same approach and block the use or transfer of assets until a court authorises their release. Where a deceased person is a joint account holder, the jointly held assets will be blocked proportionately. (i.e. 50% in the case of two names on the account, 33% in the case of three names on the account and so on). This is true even where only one signature is required to operate the account.
In Western Europe most joint assets are treated as wholly owned by both parties. In Turkey, the law clearly defines such assets as being owned individually in equal shares by each of the persons.
It has been widely claimed that making a will in Turkey will ensure that assets held within The Republic of Turkey will be distributed in accordance with the wishes of the asset holder on their death. That is only true where the preferred distribution is the same as the way that the inheritance formula would have distributed them anyway. Therefore, if assets are going to be divided in that way anyway the will is not necessary and why the majority of Turkish Citizens do not have one. What a will does do is lay down in writing, witnessed officially, the preferred wishes of a person immediately prior to their death. That enables a Turkish lawyer to attempt to carry out those wishes. What he/she will do is attempt to contact all the rightful inheritants under the inheritance formula. If any of them are not included in the will, or the will offers them less than the formula provides, they will be asked to sign a legal waiver giving up some or all of their inheritance rights in favour of the beneficiaries and their allocations named in the will. They will also sign a document authorising the lawyer to transfer those assets from their name to the will’s beneficiaries. This is necessary because in the first instance the Turkish court will require that the assets are first transferred to their rightful inheritants under the formula. The lawyer will then, using the signed authorities, immediately transfer them in whole or in part according to the wishes of the deceased. If any of the rightful inheritants do not sign both the waiver and the transfer authority the asset will be given to them to do with as they please. It should be noted that for foreign citizens the whole value of the deceased persons estate is treated in this way but only for assets owned within the Republic of Turkey. It should be noted, though, that where a non-Turkish person is married to a Turkish citizen that all of the worldwide assets held individually or jointly by the deceased or his/her spouse may be subject to distribution according to the legal formula.
Step-children, foster children and some adopted children may not be recognised as children of an asset holder under the Turkish inheritance formula.
Finally, we come to the actual process of a potential beneficiary or their appointed representative approaching the court to have assets released. This process applies whether a will is in place or not. Although, technically, claimants can represent themselves, in most cases it would be advisable to use the services of an experienced lawyer to make the application to the court. Lawyer fees and court processing fees will be required. The required supporting documents that are requested will need to be officially translated. The total costs can reasonably be expected to be several thousand Turkish Lira and more if the case is not straightforward. Where there is a will, additional costs, again possibly several thousand Turkish Lira may be needed to obtain waivers and make the necessary re-distribution of assets. It should be noted that asset transfer taxes due will also need to be paid in each individual case. You can expect the whole process to take from 6-24 months to be concluded.
Several lawyers that have been asked to make recommendations on how to avoid the time cost and inconvenience of the above requirements have suggested the same solution.
They concluded that asset holders should give a legal authority (called a power of attorney) to at least one but preferably two third parties (family member, friend, legal representative) to enable either of those individuals to administer their assets at any time and in any way. The asset holder should keep this document safe until it is needed and make the nominated representatives aware of its existence and how to obtain it when necessary. The representative can then travel to Turkey with the document and, in normal circumstances, transfer the entirety of the estate according to the asset holders wishes within a single day and return to their home country with the matter fully concluded. A benefit of this kind of document is that it can be used at any time and it is not necessary for the asset holder to have died to be valid. It can be useful if, the asset holder is unable to, or simply does not wish to, travel to Turkey for any reason.
NOTE: Where asset holders wish to they can create a joint authority on behalf of them and anyone else (spouse, partner, friend, anyone over 18) to cover all their joint and individual assets. It is just as effective as creating a document of authority each but the costs of creating a joint document are generally the same as for a single one and therefore costs can be kept to a minimum where more than one asset holder is involved.
NOTE: In theory, you can nominate as many persons to represent you as you wish on a single document. In practice, it is recommended that two persons are nominated as representatives on the same document, which will generally cater for most situations. The second, and any subsequent nominees will have all the powers of the first in their own individual capacity unless you specificy that two or more of the nominees are required to sign together. It does not cost more to add more nominees.
NOTE: Nominated representatives should be over 18 years of age. Nominees over the age of 65 may be required to obtain a certificate of legal competence from a doctor. That requirement may also apply if the person/s giving the authority are over 65 and is at the discretion of the notary.
NOTE: It is not necessary for the nominated representative/s to sign anything or to be involved in the process of creating the document of authority. They do not even need to be aware that they have such authority until you choose to inform them. You will, however, need to provide their full name/s exactly as it appears in their passport/s, date/s of birth, and their current residential address/es.
NOTE: It is critically important to ensure that the authority document is drawn up according the legally recognised format and legalised in the correct way. Even simple errors can result in the document being invalidated.
NOTE: It is not necessary to include the passport or National Identity number of the person you are giving the power to. Be aware that if you do include that number that they will required to produce that document together with the power of attorney when exercising its powers which may not happen for many years after which the ID or passport document referred to may have been lost or replaced.
NOTE: Irish citizens are able to have new or replacement passports issued with their middle name/s left out. Before choosing that option, asset holders should be aware that if the name on an asset and the name in a current passport are different then the Turkish institutions will require official confirmation that both names belong to the same person which can be difficult to obtain when in Turkey.
NOTE: When a couple are named on the Tapu, it is advisable to give authority to each other and one third person or organisation
The cost of preparing, authorising and legalising a power of attorney document varies according to how and where it is done. You can:
1) prepare the document yourself if you have sufficient knowledge of the required format.
2) Use a suitably-qualified English-speaking lawyer. The fee for preparing the document correctly is estimated to be between 500 TL and 800 TL depending on their scale of charges.
3) As an alternative to a lawyer, but just as effective, you can use the services of an agent with the sufficient knowledge of how these kinds of documents are prepared and legalised for a lower fee of 250 – 500 TL. As a guide you can expect to pay the lower end of that scale if the document is signed by you (and your joint signatory if applicable) in Turkey and the higher end if the document is prepared in your own language and sent to you by e-mail or post for signature in your home country. All of the agents on the Citizens Advice Centre register are also registered translators and will include the official translation fee in their total fee.
Whichever method you choose to create the document you will have official fees. The notary office in Turkey will charge a stamp duty of approximately 268 TL including KDV (VAT) for a single person and approximately 345.00 TL including KDV (VAT) for a joint document with two persons named and an official translation fee of around 70 TL including KDV. As from February 2014 it is now necessary to have your passport translated at a cost of 87.00TL for each passport. The document can be drafted and legalised from outside Turkey, in your home country for example. To do it from outside Turkey would add a cost of about 120 EURO in Ireland and 120 British Pounds in The UK which is the fee charged by the local notary for witnessing your signature and includes the fee for a stamp (called an apostille) placed on the document by the Foreign Office of your home country confirming its validity (don’t worry about the details of this part of the process as your local notary will arrange it for you) and the cost of postage to Turkey. Once the document reaches Turkey it will be finalised at a Turkish notary following the same process as above and with the same official costs.
Information needed to prepare and legalise a power of attorney
From EACH of the persons GIVING the authority AND for each of the persons RECEIVING the authority:
1) Their full names exactly as they appear in their passports
2) Their date of birth
3) Their current residential address
AND from EACH of the persons GIVING the authority:
1) Two passport sized-photos
2) Their original passports to be presented at the time of signing
3) Payment at the Notary office in Turkish Lira and in cash
4) Turkish tax number
The Foreign Citizens Advice Centre can assist you with the preparation of this important document by co-ordinating everything on your behalf. It can arrange for English-speaking lawyers or legal agents to contact you, locate and/or speak to notaries in your home country and arrange appointments for signature on your behalf, take delivery of posted or couriered documents and advise in general on your individual requirements.
Hopefully, if you are the owner of any assets within The Republic of Turkey you will appreciate the need for this kind of provision to be made. Please do not hesitate to ask for further information and advice if required.
The services of The Foreign Citizens Advice Centre are free of charge if you are a qualifying foreign citizen and you will find contact details on our website at www.adviceturkey.org
IMPORTANT NOTE: This fact sheet has been prepared with the best attention to detail and is current at the time of printing but, as each person’s circumstances are different and laws and rules can change, you are advised to contact an advisor at The Foreign Citizens Advice Centre nearer to the time when you are considering creating this type of document for yourself and/or your partner for the most up to date advice.
Factsheet updated 16th May 2015