Inheritance Distribution (Sharing) Agreements
I. General Information
The division of inheritance is the distribution of the deceased person's estate among their heirs. The division of inheritance is carried out through an inheritance division agreement or a joint ownership dissolution lawsuit (izale-i şüyu davası).
This article will provide information about the inheritance partition agreement.
II. Implementation of the Inheritance Partition Agreement
Through the partition agreement, heirs freely determine their share ratios in the estate and divide the inheritance among themselves. The inheritance partition agreement arranged among the heirs facilitates the division of the inheritance.
While the entire estate can be divided through a partition agreement, indivisible assets are assigned in their entirety to one of the heirs in accordance with Article 651 of the Turkish Civil Code[1] (“TMK”). In other words, the partial division of the inheritance by agreement is only valid for divisible assets, while other assets cannot be partially divided by agreement. According to Article 651 of the TMK, if the heirs cannot agree on the division of assets that will lose value when divided, such assets will be sold and the proceeds distributed among the heirs. The sale shall be conducted by public auction at the request of at least one of the heirs.
Conditions for division: (i) the immovable property subject to division must be registered in the land registry as joint ownership (co-ownership) or shared ownership (joint ownership), (ii) all co-owners of the immovable property must participate in the division, (iii) as a result of the division, each co-owner must receive either an independent or shared immovable property.
III. Form of the Inheritance Distribution Agreement
Pursuant to Article 677 of the Turkish Civil Code, the validity of an agreement between heirs regarding the transfer of their inheritance shares in the entire estate or a portion thereof is subject to the written form. With this agreement, which may be made in simple written form, heirs may transfer their shares in the entire estate or a portion thereof.
According to Article 20 of the Land Registry Regulation[2], having the agreement drawn up by a notary public has practical consequences for the heirs. We also recommend that this agreement be drawn up by a notary public for evidentiary purposes.
Procedure for the Inheritance Division Agreement
It is preferable for inheritance division agreements to be drawn up by a notary public.
For the contract to be drawn up, the identities of the heirs must be verified, and photographs must be submitted to the notary.
Furthermore, the immovable properties subject to division must be clearly specified, the division must be clear and understandable, and the intention to register the division in the land registry must be explicitly stated.
It would be appropriate for the agreement drawn up by the notary to be submitted to the land registry together with all parties. Since it may be problematic for the heirs to come together to submit the agreement to the land registry, the heirs may appoint a representative for the submission stage and resolve the issue practically.
2. Documents and Information Required for the Inheritance Division Agreement
a. Title deeds of the immovable properties subject to division,
b. Photographic identity cards of the co-owners of the immovable properties subject to division,
c. Two 6 x 4 cm passport-sized photographs of each co-owner taken within the last six months.
3. Financial Aspects of the Inheritance Partition Agreement
If the partition is to be carried out among the heirs, a land registry fee of 6 per thousand must be paid based on the declared values of the immovable properties, which must not be less than the property tax values declared during the general declaration period.
In addition, inheritance and succession taxes must also be paid.
IV. Partition of Co-ownership Case
It is certain that the inheritance partition agreement is a practical solution. If this option is not chosen, the heirs must file a partition of co-ownership case, which takes a long time to resolve. This case is filed in the civil courts. The court fee is deducted from the sale price of the immovable property.
V. Conclusion
The division of inheritance shares among heirs through an inheritance division agreement provides significant convenience to heirs when considering the time and litigation costs that would be incurred through a partition of co-ownership lawsuit. Heirs can both divide the inheritance shares according to their own wishes and complete the distribution of the estate in a short time. If litigation is pursued, the lawsuit process is both lengthy and costly.
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Av. Dr. Anıl Coşkun, LL.M
info@anil-coskun.com
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