Succession with Foreign Elements: Real Property Abroad and Inheritance Rights of Foreigners in Turkey (Turkish Private International Law Perspective)

INHERITANCE WITH A FOREIGN ELEMENT: REAL PROPERTIES ABROAD AND INHERITANCE RIGHTS OF FOREIGNERS IN TURKEY (FROM THE PERSPECTIVE OF TURKISH PRIVATE INTERNATIONAL LAW)

1. Introduction: Framework of the Subject and Problems of Application

Inheritance with a foreign element is one of the areas that generates the most disputes in practice in modern societies, as population mobility (dual citizenship, long-term residence abroad, mixed marriages) and economic relations (acquisition of real property abroad, international investment, company shares) increase. For Turkey, the problem concentrates along two main axes: (i) When the decedent's estate includes real properties abroad, which law will apply and which procedure will be followed in which country? (ii) If one or more of the heirs are foreign nationals, under what conditions can these persons acquire real properties in Turkey through inheritance?

In this study, based on Law No. 5718 on Private International Law and International Civil Procedure ("PIL") and Land Registry Law No. 2644 ("LRL"), the connecting rules of inheritance with a foreign element in Turkish law, the status of real properties abroad, the acquisition of real properties in Turkey by foreign heirs, and the critical points of this area shaped by case law will be systematically examined. The study will also touch upon the effect of special regulations such as Law No. 5403 on Soil Protection and Land Use on the distribution of inheritance.

2. Conceptual Distinction: "Succession Statute" and "Real Property Statute"

The first methodological step in analyzing inheritance with a foreign element is reading inheritance law in two layers:

1. Succession statute: Which law will govern institutions such as heirship, inheritance shares, reserved portion system, reduction, disclaimer of inheritance, and disinheritance.
2. Property statute (real property statute): Which law will govern matters such as the acquisition of ownership especially regarding real properties, registration, creation of real rights, and their effect on third parties.

While the Turkish PIL system adopts the principle of "national law of the decedent" in the succession statute (Article 20/1), it additionally and explicitly brings into play the "law of the place where the property is located" for real properties (Article 20/1 sentence 2). This regulation is also consistent with the general lex rei sitae approach in PIL Article 21: real rights over immovable property are, as a rule, subject to the law of the country where the immovable is situated.

This dual distinction produces the following result in practice: Even if the persons who are heirs are determined according to the decedent's national law, the country where the real property that constitutes the subject of the inheritance is located applies its own rules regarding public policy and the real property regime on a priority basis in the transfer of that property.

3. Applicable Law (Connecting Rules)

3.1. General Rule: Inheritance Is Subject to the Decedent's National Law (PIL Article 20/1)

The first sentence of PIL Article 20/1 states that inheritance is, as a rule, subject to the "national law of the decedent." In doctrine, this preference is justified by the close connection of inheritance with family and personal status, with the citizenship tie of the decedent being the connecting factor showing the "closest connection." However, the decedent's national law alone is not always sufficient; because sovereign authority of states over real properties (public policy, land registry, land tenure regime) plays a far more determinative role.

3.2. Real Properties in Turkey: Turkish Law (PIL Article 20/1 sentence 2)

With the second sentence of PIL Article 20/1, a clear lex rei sitae rule has been introduced by stating that "Turkish law applies with respect to real properties located in Turkey." In practice, this means that even if the decedent is a foreigner, Turkish law will play a dominant role in the outcomes of distribution/acquisition/partition of real properties in Turkey.

Court of Cassation practice also confirms this framework:

"Since the law provides that everyone except those ineligible for inheritance can be an heir (TCC Article 577/1); being a 'foreigner' is not, as a rule, a bar to being an heir. However, inheritance is subject to the national law of the decedent (PIL No. 5718 Article 20/1). Turkish law applies with respect to real properties located in Turkey. The law of the country where the estate is located applies to the opening, acquisition, and partition of the inheritance. (PIL No. 5718 Article 20/2) Pursuant to these provisions in our national law, if the decedent is a Turkish national and there are foreign nationals among their heirs as of the date of death, Turkish law will apply for these foreign-national heirs to be able to acquire a real property located in Turkey through inheritance."

Source: 3rd Civil Chamber 2012/7355 Case, 2012/12656 Decision.

This line of decisions emphasizes two critical points: (i) Being a foreigner alone is not a bar to being an heir. (ii) Turkish law applies to real properties in Turkey.

3.3. Real Properties Abroad: Law of the Place Where Located (Lex Rei Sitae)

PIL Article 20/1 explicitly states Turkish law only for "real properties located in Turkey." The natural extension of this is: for "real properties located outside Turkey," in accordance with general acceptance and consistently with PIL Article 21, the law of the country where the real property is located comes into play. Here, in practice, a "two-stage" process forms between the tying of the succession statute (who is an heir, what are their shares?) to the national law of the decedent, and the tying of the property statute of the real property (registration, transfer, effect on third parties) to the country where it is located.

The typical consequences of this situation:

• A succession certificate/decision obtained in Turkey may not directly produce results in the land registry of the real property in the foreign country.
• A separate process similar to "probate / succession certificate" may be required in the foreign country.
• The foreign country's law may not apply certain provisions of foreign law, relying on its own public policy (e.g., forced heirship, family dwelling protection, etc.).

3.4. PIL Article 20/2: Issue of Interpretation of the Expression "Law of the Country Where the Estate Is Located"

In PIL Article 20/2, the criterion of the "law of the country where the estate is located" is separately regulated for the causes of the opening, acquisition, and partition of inheritance. This paragraph, especially in multi-country estate structures, creates a complex relationship between the country where the estate assets are actually located and the national law and habitual residence of the decedent. In practice and in doctrine, it is accepted that this provision opens space for the procedural and substantive rules of the forum country/location of the estate especially at the stages of "conduct of transactions" and "liquidation/distribution." However, the explicit lex rei sitae provision of Article 20/1 sentence 2 for real properties in Turkey is dominant.

4. Inheritance Rights of Foreigners in Turkey: Principle, Limitation, and Application

4.1. Principle: Being a Foreigner Is Not a Bar to Being an Heir (TCC Approach + Court of Cassation)

In the systematics of the Turkish Civil Code, eligibility for inheritance is generally broad; being a foreigner does not, as a rule, eliminate heir status. This approach is also clearly expressed in Court of Cassation case law (such as the 3rd Civil Chamber decision cited above).

However, the critical break point here is: being an heir (heirship relationship and share) and acquiring real property in Turkey (in rem acquisition) are not always the same thing. Even if the foreign heir holds heir status, in registering the real property in Turkey's land registry in their name, they encounter the foreign acquisition regime in the Land Registry Law.

4.2. Land Registry Law Article 35: Acquisition of Real Property by Foreigners and Current Regime

Land Registry Law No. 2644 Article 35 (current text) makes it possible for foreign natural persons to acquire real property in Turkey within the framework of "countries determined by the President" and various quantitative/local limitations. For this reason, the acquisition of real property in Turkey by a foreign heir through inheritance brings the following checks into play in practice:

• Whether the heir's nationality falls within the scope of "permitted countries,"
• Whether the location of the real property is subject to military/strategic/security zone restrictions,
• Whether limitations such as area per person/district area have been exceeded.

4.3. The "Reciprocity" Debate and Historical Nature of Case Law

In some decisions in the Apilex case law database, the emphasis on the "reciprocity" element can be seen. This emphasis is closely related to the past texts of the foreign real property acquisition regime and their transitional effects. In particular, the date of the decedent's death may determine which legal text will apply (and which conditions will be sought).

For example, the Court of Cassation points to the importance of limitations for real properties in inheritance matters with a foreign element:

"It has been stated in Article 35 of the Land Registry Law in force on the date of opening of the inheritance that foreign national natural persons... may acquire real property in Turkey... Since this limitation specified in the Land Registry Law can only be applied in respect of real property, there is no legal obstacle for foreign national persons to be heirs in respect of movable property and money or other rights."

Source: 7th Civil Chamber 2022/1744 Case, 2023/4294 Decision.

A similar emphasis is found in the 14th Civil Chamber decision:

"As will be understood from the explicit provision of the law, since this limitation specified in the Land Registry Law can only be applied in respect of real property, there is no legal obstacle for foreign national persons to be heirs in respect of movable property and money or other rights..."

Source: 14th Civil Chamber 2017/2136 Case, 2021/797 Decision.

This line of case law clarifies the following practical distinction for practitioners:

• Movables/money/receivables: As a rule, a freer area of acquisition for foreign heirs.
• Real properties: A more "controlled" area due to the Land Registry Law and its limitations.

4.4. Succession Certificate and Transfer of Real Property: Land Registry Law Article 37

Land Registry Law Article 37 focuses on the nature of the supporting document in "transfer" transactions for foreign natural persons:

• Succession certificate obtained from Turkish courts,
• Succession document obtained from a foreign authority and certified by Turkish courts.

This provision generates two scenarios in practice:

1. Obtaining a succession certificate in Turkey: The most practical path for the transfer of real properties in Turkey.
2. Recognition/certification of a foreign succession document: Comes to the agenda especially when the decedent and heirs are abroad.

At this point, in inheritance matters with a foreign element, the relationship between eligibility/acquisition limitations and the succession document has been debated at the Court of Cassation; the need for investigation "especially regarding real properties" has been pointed out:

"...especially regarding real properties, it is necessary to investigate whether the relevant parties have eligibility to be heirs as of the date of opening of the inheritance..."

Source: 3rd Civil Chamber 2012/8111 Case, 2012/13537 Decision.

5. Real Properties Abroad: Roadmap for the Turkish Practitioner

When real properties abroad are at issue, the Turkish practitioner's basic strategy is to proceed on a "dual track":

1. Clarifying succession status in Turkey: Points such as succession certificate/heirship document, inheritance shares, and the validity of any testamentary disposition. This stage is particularly necessary for assets in Turkey and transactions to be conducted in Turkey.
2. In rem transfer procedure in the country where the real property is located: The land registry and succession procedure of that country (probate, notary succession deed, court order) is followed. The succession document from Turkey can most often contribute as "evidence"; however, it may not be sufficient on its own.

Frequently encountered legal issues in this process:

• The foreign country's "forced heirship" system being different from Turkish law,
• Formal requirements of the will (reference through PIL Article 20/4),
• The effect of the matrimonial property regime on the distribution of inheritance (especially the rights of the surviving spouse),
• Apostille/translation/certification procedures for the recognition of a will drawn up in Turkey abroad.

6. Jurisdiction in Turkey: Where Are Inheritance Cases Filed? (PIL Article 43)

Jurisdiction in inheritance cases is determined by PIL Article 43: the court of the decedent's last domicile in Turkey; if absent, the court of the place where the estate assets are located. This jurisdiction rule determines the forum for succession and partition cases especially regarding real properties in Turkey.

7. Special Area: Transfer of Agricultural Land Through Inheritance (Effect of Law No. 5403)

If the real property subject to inheritance in Turkey is agricultural land, regardless of whether the heirs agree or disagree, Law No. 5403's "anti-partition" approach may come into play. The system that allows the civil court judge to decide "transfer to the qualified heir" is a special regime that limits classical freedom of inheritance distribution and is based on public interest/land policy. This area gains additional importance when there are foreign heirs; because both foreign acquisition limitations and the agricultural land regime must be evaluated together.

8. Tax Dimension (Brief Note): Inheritance and Transfer Tax Procedures

In inheritance with a foreign element, the tax dimension most often comes to the agenda "subsequently"; however, land registry procedures and the liquidation plan should be conducted together with tax planning. In Council of State decisions, the accrual/payment periods and follow-up regime of inheritance and transfer tax are discussed:

"Article 1 of Inheritance and Transfer Tax Law No. 7338 provides that the transfer of assets located in Turkey through inheritance... is subject to inheritance and transfer tax..."

Source: 7th Chamber 2000/4902 Case, 2002/3367 Decision.

Although this article focuses on PIL and the real property regime, it should not be forgotten that the tax dimension can have a "transaction-blocking" effect in practice.

9. Evaluation: Checklist for Practice

The recommended checklist for practitioners in an inheritance file with a foreign element is as follows:

1. The decedent's citizenship(s) and status on the date of death (for determination of national law).
2. The decedent's habitual residence and domicile (for jurisdiction and actual connections).
3. Elements of the estate: Is there real property in Turkey? Is there real property abroad? Is there movable property/receivable/account?
4. For real properties in Turkey: Evaluation of the acquisition status of the foreign heir within the scope of Land Registry Law Article 35 (country/area/limitation).
5. Is there agricultural land? If so, Law No. 5403 regime.
6. Succession document strategy: Turkish succession certificate or foreign document + certification?
7. For real property abroad: Whether a separate inheritance procedure is required in the relevant country (need for local consultation).
8. Translation, apostille, consulate certification chain.
9. Timing of tax obligations.

10. Conclusion

In Turkish law, inheritance with a foreign element, while on one hand tying the succession statute to the national law of the decedent through PIL Article 20, on the other hand strongly adopts the lex rei sitae approach for real properties; applying Turkish law as a mandatory connecting rule for real properties located in Turkey. While the inheritance right of foreigners in Turkey is recognized in principle, the foreign acquisition regime in Land Registry Law Article 35 is the "critical filter" of practice in respect of real properties. For real properties abroad, succession documents from Turkey are not always sufficient on their own, and it may be necessary to conduct separate in rem transfer procedures in the country where the real property is located. For this reason, success in inheritance files with a foreign element is possible by correctly establishing the connecting rules and disciplinedly applying the "status–real right" distinction with respect to each country.

BIBLIOGRAPHY (Selected)

A) Legislation

• Law No. 5718 on Private International Law and International Civil Procedure (Articles 20, 21, 43).
• Land Registry Law No. 2644 (Articles 35, 37).
• Law No. 5403 on Soil Protection and Land Use (Article 8).

B) Case Law (Apilex)

• Court of Cassation 3rd Civil Chamber, 2012/7355 Case, 2012/12656 Decision.
• Court of Cassation 7th Civil Chamber, 2022/1744 Case, 2023/4294 Decision.
• Court of Cassation 14th Civil Chamber, 2017/2136 Case, 2021/797 Decision.
• Court of Cassation 3rd Civil Chamber, 2012/8111 Case, 2012/13537 Decision.
• Council of State 7th Chamber, 2000/4902 Case, 2002/3367 Decision.

C) Doctrine (Guiding)

• Ergin Nomer, Private International Law (sections on applicable law in inheritance and real rights).
• Vahit Doğan, Private International Law (inheritance, real properties, public policy, and directly applicable rules).
• Cemal Şanlı / Emre Esen / İnci Ataman-Figanmeşe, Private International Law (succession statute, lex rei sitae, recognition-enforcement, and connections with law of foreigners).
• Aysel Çelikel / Bahadır Erdem, Private International Law (inheritance connecting rules and status of real properties).