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|The KTLN Kalkan Guide to making a will|
|Friday, 02 December 2011|
The Turkish word for a will is 'Vasiyet'. Making a will is 'Vasiyet hazırlamak'.
For Turkish people there are rules on inheritance, which to some extent restrict what can be done with their property when they die.
For foreigners in Turkey things are different. They can dispose of their property in accordance with their own wishes, but they need to make a will to make sure this happens.
In this article we provide our understanding of how things work in relation to Turkish and English rules of inheritance.
We take you through the reasons why you should have a Turkish will, how to go about making one, choosing an executor, what happens upon death, and a little about inheritance tax.
Sorry it is a long article, however we believe it is useful to explain the detail. We hope you will find it of interest.
UK citizen married to a Turkish citizen
For simplicity, the rest of this article assumes you are an English national, and that you have assets in Turkey. We start with some high level points.
Residents and non-residents with assets in Turkey need a Turkish will
Irrespective of whether you are resident in Turkey or not, you should have a Turkish will that covers all your assets, immovable and moveable property. If you have assets outside Turkey, you should have a separate will to cover how they should be dealt with.
So even if you don't own a property in Turkey, but you do have a Turkish bank account, it makes sense to have a Turkish will.
Don't let one will revoke the other
Relying solely on an English will
Use a Turkish lawyer
Choosing an executor
In your Turkish will, we recommend appointing a Turkish solicitor as the executor - someone younger than you, who is likely to outlive you!.
The reason we suggest this, is because when someone dies, there is a legal process to follow, to prove a will, in order that the estate can be distributed. It is highly unlikely that a friend will know what to do - especially if that friend is not Turkish.
At some stage, it is highly likely that the services of a Turkish lawyer will be required, so you may as well get them to act as executor, to smooth the way as much as possible.
Of course, they will charge you for their time, but even if you appoint a friend as an executor, that friend is going to need legal advice. So come what may, there will be a lawyers bill to pay.
When you are asking your lawyer for an estimate of costs for drawing up your will, he/she is unlikely to give you any estimate of charges for acting as executor, as it is impossible to say now, just how much time will be required to deal with your future estate.
Rates charged by lawyers, are normally in accordance with central guidelines, and these rates will obviously change over time. So clearly, they can't give you an estimated hourly rate for some indeterminate time in the future.
Step by step guide for making a Turkish will
1. Consider exactly how you want your estate to be distributed. Write down your wishes, and specify who the beneficiaries will be, and what you are bequeathing to them.
2. Find an English speaking Turkish lawyer, to help you with the process of writing, and formally registering the will. Ask for an estimate of costs before you start.
3. Go through your wishes, in detail, with your lawyer. Make sure he/she fully understands what you want to happen.
4. Your lawyer will then prepare a draft of your will in Turkish, and explain what it says. It is possible that an English translation will be provided, but please note this is only for information - it has no legal standing in Turkey.
Even if your Turkish is limited, you should be able to recognise the names and addresses of the people you want including in your will. If you have any doubts about what is in the will, you should raise questions at this time, and ask for changes if required.
Once you have agreed your will, you and your lawyer need to visit a couple of places.
5. Firstly, you should see a qualified doctor, who will issue a note to say that you are fit to make a will. This is more to do with your mental capacity, rather than whether you are a fine physical specimen of a human being.
Having this certification, is a plus point when your will is presented to the court, to be proved, after your death. If you don't have this certification, it leaves your will open to challenge from anyone who may say you were not competent to make the will.
6. Then, on the same day as you get your doctor's certificate, you need to attend the office of a notary, in the presence of a certified translator, and two other witnesses. The translator must read the will out loud, translating it for you, so that you understand exactly what the will says. Assuming you are happy, you will sign the document, and so will your witnesses. Normally, 3 copies of the will are prepared and signed.
7. The notary then stamps all copies of your will, and allocates a unique reference number. You are given one copy, the notary office stores the second copy, and a third copy is sent to your Consulate or Embassy office.
Cost of making a Turkish will
Charges may differ, according to the complexity of your will, so we suggest shopping around and negotiating the best deal possible.
The overall cost will include the lawyer's fee, the notary's fee, the cost of a translator, and a small charge from the doctor. You are looking at hundreds of pounds in total, per person.If your initial reaction is that this is a lot of money, well, it is. However, please consider what you are getting, and what the cost of doing nothing is.
You are getting expert advice from a trained lawyer. Unlike the UK, your will is being formally recorded on a register, and physically stored by the notary, so that your will can be easily located in the event of your death. And the translator is making sure that you understand what is going on. You are, after all, in a foreign country.
And what about the cost of doing nothing?
This will take time, and money. Any saving you may have made by not making a will, will inevitably result in a significantly higher set of charges, which will be deducted from your estate.
In short, it is a false economy. Moreover, you will be bequeathing a legal and logistical headache to your nearest and dearest.
What happens to bank accounts when someone dies?
1. The account in the sole name of the deceased husband is effectively frozen, until such time as the court has approved the will - see below. Subsequently, the money may be distributed in accordance with the courts decision.
2. The account in the name of the wife continues to operate as normal.
3. As far as the joint account is concerned, this is where it gets complicated. We asked every bank in Kalkan to tell us what would happen. Unfortunately, we did not get a consistent answer.
One bank said that the joint account would be completely frozen, until the court adjudicated. Another said that the joint account could continue to operate as normal, with all withdrawals permitted.
However, the position which we believe to be correct, and which most banks told us, is that unless there is some specific evidence to the contrary, where there is a joint account, there is an assumption that each person owns an equal share of the balance.
Consequently, in our example, the wife could take up to 50% of the balance in the joint account immediately, however, the remaining 50% would be deemed to be part of the estate of her deceased husband, and this would not be released until the court has adjudicated on the will - see below.
Sole or joint bank accounts?
You may wish to consider splitting the money in to separate accounts, or opening a joint account. This also makes sense in terms of maximising your government guarantee for funds invested in the banks, which currently stands at 50,000 TL, per person, per bank.
What needs to happen when someone dies
You should seek legal advice. If the will has appointed a Turkish lawyer as the executor, contact that person.
If you shared a property in Turkey with the deceased, you can continue to live there, whilst the formalities of dealing with the estate are being dealt with. We have already dealt with bank accounts, above.
You will need to take a few things with you, when you see your lawyer, including: the death certificate; passports; bank books; the will, and if applicable, your marriage certificate; property tapu(s); residency book (ikamet); Turkish vehicle documents, and any relevant insurance policies.
The lawyer will apply to the local court for a hearing to open and read the will. If your will has been lodged with the notary in Kaş, the hearing will be in the court in Kaş. This may take some time, as the courts are busy.
Please note, that the surviving relative in whose name the application is made, does not necessarily need to have residency.
The court will ask the notary office to hand over their copy of the will, and will set a date for the hearing.
The court will then undertake any checks it sees fit, prior to approving the will. For example, this may include contacting the tapu office, and local banks, to establish the extent of assets. This process may take some time - several weeks, or even months.
Once the court is happy it has obtained all relevant facts, it will give a preliminary agreement for the will to be confirmed, however this is subject to a brief appeal period. During this time, anyone can approach the court to challenge the will.
Assuming that there is no challenge, the court will finally issue a legal document approving the will. With this court document, it is then possible to transfer moveable and immovable assets into the name(s) of the beneficiary(ies).
The process is similar to what happens when a property is sold. Capital Gains Tax may be due.
The following link takes you to an official government web site, and shows the rate of tax applied for amounts inherited when someone dies (left column), and sums of money gifted whilst someone is alive, (right column). Turkish Inheritance Tax Rates
Finally, having read this article, we should make it clear that there is no legal requirement for you to make a will. You could say to yourself, it's not that important, and do nothing.
But whoever is left behind will have to do something. It will take them longer, cost them more money, and could prove to be a good deal more stressful.
KTLN would like to thank Kalkan solicitor, Kader Güneş, for her valuable advice on this subject.
|Last Updated on Friday, 09 December 2011|