What Is Inheritance Partnership?

Inheritance partnership is a legal concept referring to the situation where heirs collectively own the estate as joint owners after the death of the decedent. Under Article 640 of the Turkish Civil Code (TCC No. 4721), when there are multiple heirs, a partnership is formed among the heirs upon the opening of the inheritance. In this partnership, the heirs hold joint ownership (elbirligi mulkiyeti / istirak halinde mulkiyet) over the estate; in other words, each individual heir does not have a specific pecuniary share in the estate.

In joint ownership, the heirs' rights over the estate are exercised collectively. No heir may dispose of estate assets alone without the consent of the other heirs. Transactions such as the sale, leasing, or encumbrance of an immovable property require all heirs to act together or authorize each other. This situation can lead to serious practical problems, especially in cases with numerous heirs.

The inheritance partnership continues until the inheritance is distributed or the partnership is dissolved. During the continuation of the partnership, the heirs jointly manage the estate assets. Under TCC Art. 640/2, the heirs are jointly and severally liable for the debts belonging to the estate. This liability continues until the inheritance partnership is terminated.

The Concept of Joint Ownership (Elbirligi Mulkiyeti)

Joint ownership is a form of ownership regulated under TCC Articles 701-703. In this type of ownership, multiple persons collectively own property within the framework of a partnership relationship arising from law or contract. In joint ownership, the partners do not have determined shares; each partner holds rights over the entirety of the property. This characteristic is the fundamental feature that distinguishes joint ownership from co-ownership.

In co-ownership (TCC Art. 688-700), each co-owner holds a specific share (e.g., 1/3, 1/4) and may freely dispose of this share. Co-owners may sell, transfer, or establish limited real rights on their shares. In joint ownership, however, there is no such freedom of disposition; partners can only act together.

In inheritance law, joint ownership arises automatically upon the opening of the inheritance. No action by the heirs is required; upon the death of the decedent, all heirs become joint owners of all estate assets. This situation continues until the estate is distributed, joint ownership is converted to co-ownership, or the partnership is dissolved.

The biggest practical problem created by joint ownership is the inability of heirs to act independently. For transactions such as the sale, mortgaging, leasing, or even maintenance and repair of an immovable property, all heirs must act together or grant power of attorney to each other. If one of the heirs does not participate in or opposes such a transaction, the other heirs must file a lawsuit for the conversion of joint ownership to co-ownership.

Lawsuit for Conversion to Co-Ownership: TCC Art. 644

TCC Art. 644 is the fundamental provision regulating the heirs' ability to convert joint ownership to co-ownership. According to this article: 'Upon the request of an heir, the judge of the court of peace may decide on the conversion of joint ownership to co-ownership for assets included in the inheritance partnership, and their allocation to heirs insofar as distribution is concerned.' This provision is an important legal instrument enabling heirs to be freed from the restrictions created by joint ownership.

The lawsuit for conversion to co-ownership may be filed individually by any heir. The consent or participation of other heirs is not required for filing the lawsuit. This feature is of great importance, especially in situations where other heirs do not cooperate or cannot be reached. As a result of the lawsuit, the court decides on the conversion of estate assets from joint ownership to co-ownership and each heir's share is determined according to the legal inheritance shares under the TCC.

Competent court: Under TCC Art. 644, the competent court is the civil court of peace (sulh hukuk mahkemesi). The civil court of peace determines the shares of the heirs and decides on the conversion of joint ownership to co-ownership.

Authorized court: The authorized court is the court where the immovable property is located. If multiple immovable properties are in different locations, a separate lawsuit may need to be filed at the civil court of peace in the location of each property. However, in some decisions, the Court of Cassation has also accepted that a decision may be rendered for all properties in a single lawsuit.

Conditions and Process of the Conversion to Co-Ownership Lawsuit

Certain conditions must exist for the conversion to co-ownership lawsuit to be filed. These conditions and the procedural process of the lawsuit are addressed in detail below.

The inheritance partnership must still be in existence: The lawsuit may be filed while the inheritance partnership continues. If the inheritance has been distributed and the partnership has ended, there is no need for this lawsuit. The basic condition for filing the lawsuit is that the estate has not yet been distributed.

The plaintiff must have the status of heir: Only legal or appointed heirs may file the lawsuit. The heir must present a certificate of inheritance (veraset ilami) to prove their status as heir.

Request in the petition: The plaintiff requests in the petition that the estate assets be converted from joint ownership to co-ownership. The petition specifies the list of asset values included in the estate, the identities of the heirs, and the inheritance shares.

The process of the lawsuit proceeds as follows: After the lawsuit is filed, the court notifies all heirs as defendants by summons. The identity and share information of the heirs is determined from the certificate of inheritance. The court determines the list of assets included in the estate and may order an expert examination when deemed necessary. At the conclusion of the proceedings, the court decides on the conversion of joint ownership to co-ownership and the registration of each heir's share.

After the court decision becomes final, an application is made to the land registry directorate for the registration of immovable properties as co-ownership. Each heir can then independently dispose of their own share: they may sell, transfer, mortgage, or lease their share.

Lawsuit for Dissolution of Partnership (Izale-i Suyu)

The conversion of joint ownership to co-ownership enables heirs to make independent dispositions over estate assets; however, it cannot achieve the physical distribution of estate assets. For the physical distribution or sale and distribution of proceeds of estate assets, a lawsuit for dissolution of partnership (izale-i suyu) must be filed.

The lawsuit for dissolution of partnership is regulated under TCC Art. 698-699. In this lawsuit, the court decides how the asset values subject to co-ownership or joint ownership will be distributed. Dissolution of the partnership may occur in two ways: partition in kind (physical division) or dissolution by sale.

Partition in kind: If the asset can be physically divided into parts, the court distributes the asset values among the heirs in proportion to their shares. For example, if there are multiple independent immovable properties, a separate property may be allocated to each heir. However, if partition in kind is not possible or would significantly diminish the value of the asset, dissolution by sale is preferred.

Dissolution by sale: In cases where partition in kind is not possible, the court orders the sale of the asset at public auction and the distribution of the proceeds among the heirs according to their shares. The sale is conducted through the enforcement office by public auction. The heirs also have the right to participate in the sale auction.

The competent court for the dissolution of partnership lawsuit is the civil court of peace. The authorized court is the court where the immovable property is located. All co-owners or joint owners must be parties to the lawsuit; the case cannot be heard with missing parties.

Management of the Inheritance Partnership

During the continuation of the inheritance partnership, the management of estate assets is the joint responsibility of the heirs. Under TCC Art. 640, the heirs manage the estate jointly. Decision-making procedures in management vary depending on the number of heirs and the nature of the transaction.

Ordinary management acts: For ordinary acts such as the preservation, maintenance, and payment of taxes on the estate, the decision of the majority of heirs is sufficient. However, in practice, even in ordinary management acts, the inability of heirs to agree is a frequently encountered problem.

Important management acts: For important decisions such as leasing, repairing, or zoning proceedings for immovable property, all heirs must decide unanimously. In cases where unanimity cannot be achieved, one or more heirs may request the appointment of a representative from the civil court of peace.

Appointment of an estate representative: Under TCC Art. 640/3, each heir may request the civil court of peace to appoint a representative for estate affairs. The representative carries out the transactions related to the management of the estate in accordance with the interests of the heirs. The appointment of a representative is an important tool, especially in resolving disputes among heirs.

Advantages of Converting Joint Ownership to Co-Ownership

The conversion of joint ownership to co-ownership provides significant advantages to heirs. Knowledge of these advantages helps heirs exercise their rights more effectively.

Independent disposition: With the transition to co-ownership, each heir can independently dispose of their own share. They can sell, transfer, mortgage, or lease their inheritance share to third parties. This flexibility does not exist in joint ownership.

Land registry registration: In co-ownership, each heir's share is shown separately in the land registry. This facilitates heirs' official documentation of their ownership rights and assertion of these rights against third parties.

Credit and financing opportunities: Heirs can offer their shares in co-ownership as collateral when obtaining loans from banks. In joint ownership, since there is no specific share, banks generally do not accept them as collateral.

Reduction of disputes: The requirement for all heirs to act together in joint ownership can lead to constant disputes. Transition to co-ownership reduces these disputes by enabling heirs to make decisions independently on their own shares.

Partition Lawsuit (Inheritance Partition Lawsuit)

Under TCC Art. 642, each heir may request the partition of the inheritance at any time. The partition lawsuit is a lawsuit in which heirs request that the estate assets be distributed among them. Unlike the lawsuit for conversion of joint ownership to co-ownership, this lawsuit aims at the actual distribution of the estate.

In the partition lawsuit, the court determines all asset values included in the estate, calculates the heirs' shares, and allocates the asset values to the heirs. During partition, equalization rules also apply; benefits provided to certain heirs during the decedent's lifetime may be subject to equalization (TCC Art. 669-675).

The competent court for the partition lawsuit is the civil court of peace. The authorized court is the court at the decedent's last place of domicile. The lawsuit must be filed against all heirs. There is no prescriptive period or statute of limitations for the partition lawsuit; heirs may request partition at any time.

Application in Light of Court of Cassation Decisions

The Court of Cassation has rendered numerous decisions on the conversion of joint ownership to co-ownership and dissolution of the inheritance partnership. These decisions serve as guidance in practice.

According to the established case law of the Court of Cassation, the conversion to co-ownership lawsuit filed under TCC Art. 644 may be filed by any heir without requiring the consent of other heirs. The court, bound by the request, decides only on the conversion of joint ownership to co-ownership; it cannot decide on the distribution of the estate. Distribution is a separate subject of litigation.

The Court of Cassation also emphasizes that the conversion to co-ownership lawsuit is different from the dissolution of partnership (izale-i suyu) lawsuit. In the conversion to co-ownership lawsuit, the form of ownership changes but the property remains in the partnership of the heirs. In the dissolution of partnership lawsuit, the partnership is entirely terminated and the property is physically distributed or sold with the proceeds distributed.

A problem frequently encountered by heirs in practice is the sale or transfer of shares to third parties after the conversion to co-ownership decision. When an heir sells their share to a third party, the preemption (suf'a) right of other heirs may come into play. Under TCC Art. 732, when a co-owner sells their share to a third party in co-ownership, other co-owners may exercise the preemption right to claim purchase priority.

Key Considerations for Assets Subject to Joint Ownership

There are several important points that heirs should pay attention to in the management and disposal of inherited assets subject to joint ownership.

Preservation of estate assets: All heirs bear responsibility for the preservation of estate assets. In case of damage, depreciation, or destruction of an immovable property, all heirs must share the loss. Therefore, insuring and maintaining estate assets is important.

Distribution of income and expenses: During joint ownership, income derived from estate assets (such as rent, interest) belongs to all heirs in proportion to their inheritance shares. Similarly, the expenses of estate assets (such as taxes, maintenance, insurance) must be borne by the heirs in proportion to their shares.

Sales restriction in joint ownership: For an immovable property subject to joint ownership to be sold, all heirs must transact together. Even if a single heir refuses to participate in the sale, the sale cannot take place. In such cases, heirs must resort to a conversion to co-ownership or dissolution of partnership lawsuit.

Use of power of attorney: In situations where it is difficult for all heirs to come together, some heirs may grant power of attorney to other heirs or an attorney to enable them to transact. Power of attorney is a frequently used method especially to facilitate the participation of heirs living abroad.

Finally, inheritance partnership and joint ownership issues can lead to serious disputes in families with numerous heirs. It is of great importance to seek support from an inheritance law attorney throughout the process to protect heirs' rights and avoid unnecessary disputes.

This content has been prepared for general informational purposes and does not constitute legal advice. It is recommended that you consult an attorney for specific disputes.