What is an Inheritance Division (Distribution) Agreement?
An inheritance division agreement is a legal transaction established by the heirs through a written document to fairly distribute the deceased’s estate among themselves. It should be noted that inheritance division applies only to the estate assets that are part of the inheritance partnership and have not yet been distributed at the time the division agreement is made.
Additionally, the inheritance division (distribution) agreement is regulated under Article 676 of the Turkish Civil Code as follows:
“The agreement on the formation and actual allocation of shares among the heirs binds the heirs. Through the division agreement, the heirs may also agree to convert joint ownership of all or part of the estate into shared ownership according to their respective inheritance shares. The validity of the division agreement depends on it being in written form.”
Thus, an inheritance division agreement is a legal transaction in which heirs, through a written document, fairly allocate the relevant estate assets among themselves.
How is an Inheritance Division Agreement Made?
a. Reaching an Agreement
For an inheritance division agreement, the heirs must first reach an agreement among themselves. Accordingly, there should be a consensus on how the deceased’s estate will be divided.
b. Evaluation of the Estate
The heirs should evaluate the movable and immovable assets of the deceased and identify these assets within the total estate, known as the “estate pool.”
c. Creating a Distribution Plan
Based on the evaluation of the estate, the heirs should determine their respective shares and create a distribution plan.
d. Preparing the Agreement
After reaching an agreement, the heirs should draft a written inheritance division agreement. The agreement must include all details and clearly specify each heir’s share.
e. Execution of the Agreement
The inheritance division agreement is formalized when the heirs sign it, following the procedures outlined above. Additionally, to enhance the legal validity of the agreement, the heirs may execute it in the presence of a notary.
Scope and Form of the Inheritance Division (Distribution) Agreement
Based on the scope and form of the inheritance division agreement, the 8th Civil Chamber of the Court of Cassation, in its decision dated 09.06.2021, case no. 2021/122, decision no. 2021/4895, stated:
*”It should be immediately noted that the written form stipulated in Article 676 of the Turkish Civil Code (TCC) is not a requirement of evidence but a condition of validity. According to Article 11/2 of the Turkish Code of Obligations (TCO), if no other provision has been made regarding the scope and establishment of the form required by law, the contract is not valid unless this form is observed. The sanction for non-compliance with the form is regulated in the law as previously explained; if no other provision is set regarding the scope and consequences of the form prescribed by law, a contract made without observing the form is null and void.
As stated in the reasoning of the Supreme Court’s Unified Precedent Decision dated 29.09.1988, no. 2/2, the law regulates the prescribed form as a validity condition and attaches the legal consequence of invalidity to contracts made without observing it. Since the form requirement stipulated in the law is mandatory, the judge must take the lack of form into account ex officio at every stage. As also indicated in the Unified Precedent Decision dated 12.04.1944, case no. 1943/14, decision no. 1944/13, in contracts whose validity depends on form, failure to comply with the prescribed form renders the contract null and void, and this is directly considered by the judge as a ground for objection.
However, in a form-dependent contract, although a contract made in violation of the form is generally invalid, if the performances arising from this contract have been fully executed by the parties, asserting its invalidity due to the lack of form constitutes an abuse of rights.”
Validity Conditions of an Inheritance Division Agreement
There are several validity requirements for establishing an inheritance division agreement. If the validity conditions listed below are met, the agreement is legally recognized:
- Being in Writing
- Clear Expression of Intentions
- Participation of All Heirs
- Existence of Consent
- Compliance with the Law
On the other hand, the 8th Civil Chamber of the Court of Cassation, which accepts that an inheritance division agreement prepared in violation of the procedure can be valid if implemented, stated in its decision dated 24.09.2019, case no. 2017/15589, decision no. 2019/7987:
*”According to Article 676 of the Turkish Civil Code (TCC), the validity of a partition agreement concerning registered immovable property depends on being in writing and including the participation of all heirs. However, in a division agreement concerning immovable properties registered in the land registry as joint ownership on behalf of the heirs, since transferring to joint ownership removes the properties from the estate of the deceased and they are no longer subject to the rules of collective ownership, the transfer of shares must be done formally (TCC Art. 706, TCO Art. 237). Therefore, even if all heirs participate, this agreement cannot be considered valid.
In the present case, it is clear that the disputed immovable property was subject to joint ownership at the time of the agreement. Nevertheless, it is claimed that, through the division agreement, properties or some company shares not subject to the dispute were divided among the defendant, the plaintiff, and other heirs outside the case and distributed among the heirs. In this situation, whether the transfer of these properties/shares not subject to the dispute occurred in accordance with the will of the division is important for clarifying the case.
Although, as noted above, external division in joint ownership is invalid, if the division was carried out and the transfers were completed, claiming the invalidity of the division is considered an abuse of rights under Article 2 of the TCC according to the practice of the Court of Cassation and its chambers.”*
Competent and Authorized Court in Inheritance Division Agreement Cases
In cases related to an inheritance division agreement, the competent court is the civil court of peace, while the authorized court is the court of the deceased’s place of residence. In this context, the parties may need an inheritance lawyer, specifically an Antalya inheritance lawyer, to file and pursue the relevant case.
Frequently Asked Questions
1. Is It Mandatory to Prepare an Inheritance Division Agreement at a Notary?
As explained above, it is not mandatory to prepare an inheritance division agreement at a notary. However, signing the agreement in the presence of a notary increases its legal validity.
2. Can a Guardian Be Granted Permission to Make an Inheritance Division Agreement?
If an heir has limited legal capacity, the guardian is entitled to make the inheritance division agreement. In the case of a minor with discernment, the parent or guardian has this right. Additionally, the relevant persons can also approve an inheritance division agreement established by a person with limited legal capacity.
3. What Happens If Not All Heirs Participate in the Inheritance Division Agreement?
As mentioned, one of the validity requirements of an inheritance division agreement is the participation of all heirs. Regarding this matter, the 14th Civil Chamber of the Court of Cassation stated in its decision dated 28.09.2020, 2016/18173 Case, 2020/5458 Decision:
“The creation and actual receipt of shares among heirs, or the division agreement they make among themselves, is binding on the heirs. Through the division agreement, the heirs may also agree to convert joint ownership of all or part of the estate into proportional ownership according to their shares. The validity of the division agreement depends on it being made in writing. As clearly stated in Article 676 of the Turkish Civil Code No. 4721, if the co-owners of jointly owned property have made a division agreement (inheritance division agreement), this agreement ends the joint ownership, and they can no longer file a lawsuit for dissolution of the joint ownership. The division agreement made among the heirs is binding on them. For the division agreement to be valid, the property being divided must belong to the deceased. The division agreement must be made in writing and must include all heirs. Division agreements in which not all heirs participate are invalid. In the specific case, according to Article 676 of the Turkish Civil Code No. 4721, the validity of the division agreement depends on it being in writing and including all heirs. Although a simple written inheritance division agreement dated 04.05.1977 was made among the heirs in this case, it is understood that not all heirs participated in the agreement; therefore, a valid inheritance division agreement cannot be claimed.”
Some Court of Cassation Decisions Regarding Inheritance Division Agreements
- “According to Article 462/9 of the Turkish Civil Code, contracts regarding the matrimonial property regime, the distribution of inheritance, and the transfer of inheritance shares are subject to the permission of the guardianship authority. In the present case, the guardian requested permission not for an inheritance agreement but for an inheritance division agreement and an inheritance share transfer agreement on behalf of the incapacitated person. According to Article 462/9 of the Turkish Civil Code, the distribution of inheritance and the transfer of inheritance shares on behalf of an incapacitated person are subject to the permission of the guardianship authority. Therefore, the dispute must be examined and resolved by the Çardak Civil Court of Peace, which is the relevant guardianship authority.” (Court of Cassation 17th Civil Chamber, Decision dated 14.12.2011, Case No. 2011/10571, Decision No. 2011/12248)
- “According to Article 698 of the Turkish Civil Code, unless there is a legal obligation to maintain joint ownership due to a legal transaction or because the co-owned property is dedicated to a permanent purpose, any co-owner may request the partition of the property. The right to request partition can be limited to a maximum period of ten years by a legal transaction. Agreements regarding the continuation of co-ownership in immovable properties are subject to a formal requirement and can be registered in the land registry. Requests for partition cannot be made at an inappropriate time. In the undated protocol signed by the parties, there is neither an explicit provision for the continuation of the co-ownership nor a provision stating that the parties cannot file a lawsuit to terminate the co-ownership, and there is also no officially executed agreement regarding the continuation of the co-ownership. Therefore, it was deemed incorrect for the court to consider the unsigned protocol executed by the parties as an agreement for the continuation of the co-ownership.” (Court of Cassation, 14th Civil Chamber, Decision dated 18.11.2014, Case No. 2014/8699, Decision No. 2014/13026)
- “Since it has been confirmed by witnesses that the contract was put into writing, signed, and then taken by the defendant … in an attempt to tear it, in light of the above explanations, the partition agreement at issue between the parties should have been accepted as valid, and the scope of the partition agreement should have been determined and a decision made based on the resulting outcome. However, the court’s decision to reject the case on the grounds that the written inheritance partition agreement was invalid was incorrect and required annulment.” (Court of Cassation, 8th Civil Chamber, Decision dated 10.12.2015, Case No. 2015/13459, Decision No. 2015/22212)
- “In the present case, the defendant …’s attorney stated in the appeal petition that an inheritance partition agreement dated 27.10.2004 was executed among the heirs at the 2nd Notary Public. Once an inheritance partition agreement is made, the dissolution of the joint ownership cannot be requested. It was understood that, based on the mentioned agreement, the parties did not provide each other with voluntary conveyance at the land registry, and no registration lawsuit based on the inheritance partition agreement was filed; however, the objection to the case was made based on the inheritance partition agreement. Therefore, the court should have granted the defendants a proper period to file a registration lawsuit based on this agreement, and if such a lawsuit were filed, it should have been treated as a preliminary matter and its outcome awaited; if no lawsuit were filed, then, as in the present case, the dissolution of the joint ownership could be decided. Deciding otherwise in writing was incorrect, and therefore, the judgment needed to be annulled.” (Court of Cassation, 14th Civil Chamber, Decision dated 05.03.2018, Case No. 2017/5805, Decision No. 2018/1646)
- “Upon examining the case, it was found that in the simple written agreement dated 02.04.2014, it was determined that the plaintiff … would receive the house and land in the … neighborhood, the defendant … would receive two plots of land in the … neighborhood and the field located in … area of … village, the non-party heir … would receive the remaining land in … village, and the house in … village would remain jointly for the three of them. It was also stipulated that if anyone violated this agreement, a penalty of 30,000.00 TL would be payable. The agreement was signed by all heirs and witness …, and therefore, as a written agreement signed with the participation of all heirs, it constitutes a valid inheritance partition agreement. Although the plaintiff could have filed a land registry cancellation and registration lawsuit to enforce the agreement under this valid inheritance partition agreement, abandoning the request for specific performance based on the agreement and instead seeking the penalty amount makes it impossible. Therefore, deciding on the case in writing regarding compensation was incorrect, and the judgment needed to be annulled.” (Court of Cassation, 14th Civil Chamber, Decision dated 23.09.2020, Case No. 2016/14991, Decision No. 2020/5344)
Antalya Inheritance Lawyer – Antalya Inheritance Law Attorney
An inheritance lawyer is a legal professional specialized in resolving disputes related to inheritance law and protecting the rights of heirs. In the process of fairly distributing the estate of a deceased person among the legal heirs, the inheritance distribution agreement plays a crucial role. An inheritance distribution agreement is a written document in which the heirs mutually agree on how the estate will be divided. Obtaining the support of an inheritance lawyer is extremely important to ensure that this agreement is prepared in accordance with the law and to prevent potential legal issues in the future. If you are looking for an inheritance lawyer in Antalya, you can contact us for professional legal assistance.
