Certificate of inheritance in Turkey: notary or court?

A Turkish certificate of inheritance (mirasçılık belgesi, often called veraset ilamı) is issued either by a Turkish notary or by the civil court of peace (sulh hukuk mahkemesi) (Article 598(1) of the Turkish Civil Code, TMK). If you live abroad, the choice is not always yours. It depends on whether the death has been entered in the Turkish civil registry, who is applying, and whether the case has a foreign element (yabancılık unsuru).

What the certificate of inheritance is used for

The certificate shows who the heirs are and their shares. In Turkey it is required, for example, to transfer real estate at the land registry, to withdraw money from a bank account or to transfer a vehicle.

It is not a final judgment on who inherits. Under Article 598(3) TMK its invalidity can be raised at any time, and under Article 388 of the Code of Civil Procedure (HMK) decisions in non-contentious proceedings (çekişmesiz yargı) are, unless the law says otherwise, not res judicata. An incorrect certificate can therefore be set aside later.

Certificate from a Turkish notary: when it is not possible

Since 2011 Turkish notaries may issue certificates of inheritance (Article 71/A of Notaries Law No. 1512, added by Law No. 6217). Article 71/B of the same law rules this out in three situations:

where issuing the certificate requires court proceedings,
where the civil registry records (nüfus kayıtları) are not sufficient,
where the certificate is requested by foreigners.

The implementing regulation, published in the Official Gazette of 4 October 2011, gives examples in Article 5 of cases requiring court proceedings: an expert examination, hearing witnesses, and a request with a foreign element. The notary identifies the statutory heirs from the civil registry (Article 4 of the regulation). If the records do not answer the question, or one of these situations applies, the application goes to the civil court of peace.

The regulation does not define "foreign element". A clear case is a deceased who was a foreign national, because the estate is then in principle governed by his or her national law (Article 20(1) of the Turkish Private International Law Act, MÖHUK). Whether a file has a foreign element for the notary simply because the deceased and the heirs are Turkish citizens living abroad is not expressly regulated in the law or the regulation, and notaries may handle it differently.

Has the death been registered in Turkey?

This is where applications from abroad most often stall. If a Turkish citizen dies in Germany or the Netherlands and the death is never entered in the Turkish civil registry, the person still appears alive there. Neither a notary nor a court can then establish the heirs from the registry.

Under Article 31(1) of Civil Registration Services Law No. 5490, consulates and embassies report a death within ten days of learning of it. For people who have died but still appear alive in the registry, the civil registry office (nüfus müdürlüğü) draws up the death record when proof of death is submitted (Article 33(1)). In practice this means applying to the Turkish consulate, or to a registry office in Turkey, with the foreign death certificate. Germany and the Netherlands are parties to the Hague Apostille Convention, so their documents are presented with an apostille.

The same problem can affect the heirs. A child born abroad and never registered in Turkey, or a marriage or divorce that was never reported there, keeps the registry from showing all the heirs. Until those entries are made, the notary route is closed (Article 71/B Notaries Law).

Civil status events of Blue Card holders are kept in a separate register, and abroad they must report such events to the Turkish consulate or embassy (Article 8/A Law No. 5490).

Dual nationals and Blue Card holders

An heir who holds Turkish citizenship alongside German or Dutch citizenship is a Turkish citizen and is not treated as a foreigner by Turkish authorities.

A Blue Card (Mavi Kart) holder, by contrast, is no longer a Turkish citizen. Article 28(1) of Turkish Citizenship Law No. 5901 provides that people who gave up Turkish citizenship with permission keep enjoying the rights of Turkish citizens, except for the exceptions listed in that article. Whether a Blue Card holder can therefore obtain a certificate of inheritance from a notary is not expressly regulated. The question is disputed: Article 28(1) supports it, but Article 71/B of the Notaries Law uses the word "foreigners", and no binding court decision on the point has been identified. Whether a notary will accept the application is uncertain; the civil court of peace remains available in any case.

It is different if the deceased held a Blue Card. As a foreign national, his or her estate is in principle governed by the law of the state of nationality, while Turkish law applies to real estate in Turkey (Article 20(1) MÖHUK). Such a file clearly has a foreign element, and the certificate comes from the civil court of peace. For the applicable law in cases of multiple nationality, see Article 4 MÖHUK.

Certificate from the civil court of peace

Issuing a certificate of inheritance is a non-contentious matter (Article 382(2)(c)(6) HMK), and the civil court of peace has jurisdiction (Article 383 HMK). It follows the simplified procedure and investigates the facts of its own motion (Article 385 HMK). Where foreign law applies, the judge applies it of his or her own motion too and may ask the parties to help establish its content (Article 2(1) MÖHUK).

Which court. Under Article 384 HMK, unless the law provides otherwise, the court where the applicant or one of the persons concerned lives is competent. If one of the heirs lives in Turkey, the application can be made there.

If all heirs live abroad, the law does not expressly say which court is competent. Article 43 MÖHUK assigns inheritance lawsuits to the court of the deceased's last domicile in Turkey or, failing that, the court where estate assets are located. Whether this also applies to an application for a certificate, which is not a lawsuit, is disputed. This is the author's assessment; how a court will decide on its competence in a specific case cannot be predicted with certainty.

Applying through a representative. You do not have to travel to Turkey; you can give a power of attorney to a lawyer there.

Appeal. Anyone with a legal interest can appeal (istinaf) against the court's decision within two weeks of learning of it (Article 387 HMK). A certificate issued by a notary can be challenged before the civil court of peace by those whose interests are affected (Article 71/C Notaries Law).

Can a German Erbschein be used in Turkey?

In Germany the certificate of inheritance (Erbschein) is issued by the probate court (Nachlassgericht) (§ 2353 BGB). Whether it can be used directly in Turkey, for example at the land registry, or must first be recognised, is not settled in this article. Articles 50 et seq. MÖHUK govern the enforcement and recognition of foreign court judgments; whether a certificate issued in non-contentious proceedings falls under them is disputed and not expressly regulated by law. In the author's assessment, a Turkish certificate is the more predictable route for transactions in Turkey. Which documents you need in Germany or the Netherlands is a matter for the law of that country; please consult a lawyer or authority qualified there.

If you are considering renouncing the inheritance: the period is three months and, for statutory heirs, in principle starts when they learn of the death (Article 606 TMK). See Renouncing an inheritance in Turkey and, for general information, the inheritance law page.

Frequently asked questions

Can I get a Turkish certificate of inheritance from abroad?

Yes. Through a lawyer in Turkey holding your power of attorney, you can apply to the civil court of peace without travelling. If the conditions are met, a notary can also issue it (Article 598(1) TMK, Article 71/A Notaries Law).

Notary or court: who issues the certificate of inheritance in Turkey?

Both. If the registry records are insufficient, the matter requires court proceedings (for example because of a foreign element) or a foreigner applies, the notary cannot issue it and the civil court of peace is competent (Article 71/B Notaries Law).

What if the death is not registered in Turkey?

The death has to be registered first, using the foreign death certificate, through the consulate or a Turkish registry office (Articles 31 and 33, Law No. 5490).

Can a Blue Card holder get the certificate from a notary?

The law does not say so expressly and the question is disputed (Article 28(1) Law No. 5901 and Article 71/B Notaries Law). The civil court of peace is available in any case.

Sources

Questions about your case

If you would like to clarify whether you can obtain the Turkish certificate from a notary or from a court, which court is competent, or how the deceased's nationality affects the matter, you can choose a time for an online video call, a phone call or a meeting in Düsseldorf on the appointment page. You can also send your question in writing through the contact form. Consultations are held in Turkish and cover only Turkish law (§ 206 BRAO); for questions of German or Dutch inheritance law, please consult a lawyer admitted in that country. It helps to have ready:

the foreign death certificate and whether the death has been registered in Turkey,
the nationalities of the deceased and the heirs, and any Blue Card,
Turkish registry extracts for the heirs and a list of real estate or bank accounts in Turkey.