In short
A contract of division of the inheritance speaks of the share among the heirs. It does not finish the arithmetic of the reserved share by itself.
It speaks of the share among the heirs. It does not finish the arithmetic of the reserved share by itself.
The reserved share is in a separate writing.
The transfer of title is the enforcement face of the contract.
Related writings: dissolution of co-ownership.
Why is a contract of division of the inheritance an important tool?
A contract of division of the inheritance is one of the basic legal tools that arranges, with the joint will of the heirs, how the estate will be divided, and that aims to reduce the risk of a dispute. When communication among the heirs runs in a healthy way, it may be possible to form a planned model of division instead of long judicial processes. This convenience does not mean that the text may be prepared at random.
The problem seen most often in practice is that the technical details are neglected with the thought "we agreed within the family". Inheritance files most of the time contain multi-layered headings such as an immovable, a bank account, a company share, a vehicle, jewellery, a debt and relations with third persons. For this reason the contract needs to be built carefully both as to content and as to form.
This text is for general information. Every inheritance file is assessed differently as to the structure of the estate and the relations of the heirs.
What is a contract of division of the inheritance?
A contract of division of the inheritance is the legal text in which the heirs decide by which procedure, and to which heir, the elements of property included in the estate will be left. The aim is to prevent the division from staying uncertain, and to reduce the disputes that may arise later.
The basic functions of the contract:
- Making clear with whom the property of the inheritance will remain
- Building a model of division by observing the balance of value
- Planning the processes of transfer, of payment and of delivery
- Providing ease of interpretation if there is a dispute
Uncertain or incomplete texts produce a new dispute, contrary to what is expected. For this reason not only the expression "we agreed", but also the details turned to practice, should take a place in the contract.
In which situations is the contract preferred?
If there is a ground of basic settlement among the heirs, a contract of division may offer a practical solution. Especially in files where there are elements of property of a different nature, a balanced distribution according to the need of each heir is possible. Against this, if there is a serious problem of trust among the heirs, or a sharp conflict of interest, the negotiation of the contract may become harder.
Scenarios that are preferred often:
- Situations in which the actual division of the immovables is possible
- One heir wanting to take a particular property and making an equalisation payment to the others
- The gathering in one hand of a family enterprise, or of co-ownership, being aimed at
- A controlled division being wanted instead of a long process of an action
Even so, the contract is not the only solution in every file. In situations where an agreement cannot be reached, judicial paths may come onto the agenda.
The basic conditions that should be paid attention to for validity
For a contract of division of the inheritance to be valid and applicable, some basic elements need to be built openly:
- The heirs being determined correctly and completely
- The declarations of will of those who joined the contract being clear
- The scope of the estate being shown with an inventory as complete as possible
- The official procedure being complied with in transactions that require a condition of form
- The provisions of transfer, of payment and of delivery being written concretely
Especially in arrangements that contain a transfer of an immovable, if the official form and the transactions of title are ignored, a serious problem may be lived in the application of the text. For this reason the text of the contract and the official process of transfer should be planned together.
Why is the participation of all the heirs critical?
For the division to be lasting, and closed to a dispute, it is important that all the heirs be included in the process. One heir staying outside may give rise later to disputes of the share and of validity. If there is participation through a representative, the limits of the authority of representation should be documented openly as well.
In some families, even though there is an actual settlement, the official participation may stay incomplete. Even if this position does not look like a problem at the start, it may create a dispute at the stage of the transfer, or among the later generations. For this reason the list of the heirs and the verification of identity should be made clear at the early stage of the process.
Building the balance of the reserved share and of equalisation
One of the most sensitive headings in a contract of division of the inheritance is the balance of the reserved share and of equalisation. Even if the parties have agreed, arrangements that breach mandatory rules may be the subject of an action later. For this reason, when the design of the division is made, the basic logic of protection in the heading what is the reserved share should be taken into account.
Areas open to a mistake in practice:
- A distribution that provides an excessive advantage to one heir
- Earlier gifts and dispositions not being taken into the account at all
- The equalisation payments being left uncertain
- The date of the valuation not being written clearly
Lacks of this kind, even if the contract was signed, may prepare the ground later for reduction or for similar disputes.
How should the inventory of the estate be prepared?
For a healthy division, first a comprehensive inventory of the estate should be drawn out. Which property, which obligation and at which value entered the account of the division should be written openly. A division made without an inventory creates a serious problem especially in the disputes of a "forgotten asset" or of a "debt that appeared later".
The principal items that may be included in the inventory:
- Immovables and the information of title
- Bank deposits, investment accounts
- Company shares, commercial assets
- Vehicles, valuable movables
- Receivables and actions that continue
- Debts, credits and burdens of suretyship
This list may widen according to the file. What matters is that the inventory that is the basis of the text of the division be transparent and verifiable.
An indebted estate and the management of risk
Before the division of the inheritance is made, the structure of the debt of the estate should be analysed. In files where the debts weigh more, the decision of division may affect directly the area of responsibility of the heirs. For this reason the possibility of refusal of the inheritance and the strategy of division should be assessed together.
The risks of a division made before the structure of the debt becomes clear:
- An unexpected burden of debt creating a crisis among the heirs
- The balance of the valuation being broken
- Disputes of responsibility later
- New processes of an action among the heirs
For this reason, in the negotiation of the division, not only the question "which property will remain to whom", but also the question "how will which debt be managed", should be taken up with the same weight.
Immovables and the official process of transfer
At the head of the items that give rise to the most dispute in inheritance files come the immovables. Even if it is written in the contract to whom the immovables were left, the transactions of transfer of title, the tax burdens and the official procedure should be followed separately. A written settlement and the official transfer do not take each other's place.
What should be paid attention to in the transfer of an immovable:
- The currency of the title records
- The information of a mortgage, an attachment and an annotation on the immovable
- The expenses of the transfer and the planning of the fees
- If the co-ownership continues, the order of use and of the division of income
If an agreement cannot be reached on immovables in co-ownership, an action for dissolution of co-ownership may come onto the agenda. For this reason it is important, at the stage of the contract, to make an assessment of practical applicability particular to the immovable.
Which provisions should be open in the text of the contract?
A contract of division of the inheritance that reduces the risk of a dispute avoids general expressions and writes openly the details turned to practice. Especially the obligations of delivery and of payment staying uncertain weakens the effectiveness of the contract.
Headings that should be made clear in the text:
- The property or the right each heir will take
- If there is an equalisation payment, the amount, the date and the method
- The calendar of the official transactions necessary for the transfer
- The division of the burdens of expense and of tax
- The order of delivery and of use
- The path that will be followed if there is a dispute
The approach "we will settle it among ourselves later" looks comfortable in the short term. In the long term it is the largest source of dispute.
What happens if an agreement cannot be reached?
If a joint text cannot be formed among the heirs, the judicial process comes into play. According to the nature of the dispute, a determination of the estate, the dissolution of the co-ownership, a breach of the reserved share, or other inheritance actions, may come onto the agenda. At this stage it matters that the documents be complete and that the records of the earlier negotiation be kept in order.
Going to the path of an action is not always a negative scenario. In some files it may be necessary for an objective solution. The process of an action most of the time creates an effect of time and of cost. For this reason, in the files where it is possible, a balanced and open contract provides a sustainable solution.
Notes of practice in the context of Ankara
In the processes of division of an inheritance conducted in Ankara as well, the basic principles rest on the national legislation. The density of local practice may affect the pace of the official transactions. The conditions of validity and the main principles of inheritance law do not change. For this reason local practical knowledge should be assessed beside the legal principles, not in their place.
Especially in files where there are a large number of immovables and of heirs, conducting the transactions with a staged calendar makes the process easier. Classifying the documents digitally and physically provides equality of information among the parties.
The processes after the contract of division of the inheritance
After the contract is signed, it is necessary to follow that the application runs as it was planned. It is important to follow headings such as whether the transfers of title took place, whether the equalisation payments were made, and whether the debts were undertaken by the parties that were decided. The text not being applied forms a new ground of dispute even though the contract exists.
The dimension of tax should not be ignored either. The change of ownership of property that devolved by inheritance, and the transactions of title, may give rise to processes subject to tax. Taking the support of an accountant in these subjects should be assessed as a part of the process as well. With all these steps being completed, the division is concluded in its real sense.
Mistakes that are made often
The mistakes that repeat in contracts of division of the inheritance are these:
- Preparing the text of the division without drawing out an inventory
- Not including all the heirs in the process
- Not taking into account the balance of the reserved share
- Leaving the process of transfer of the immovable uncertain
- Seeing the debts as a secondary matter
- Not writing the dates of payment and of delivery
These mistakes weaken the function of the contract of solving a dispute, and increase the risk of a new action. A contract that was planned correctly helps the division to be completed by protecting the relation among the heirs.
A note of conclusion and of information
A contract of division of the inheritance, when it is designed correctly, is a strong tool that reduces inheritance disputes. The text being valid, open and applicable is a condition. The full participation of the heirs, the transparent preparation of the inventory of the estate, the balance of the reserved share being observed, and the official steps of transfer being planned, form the basis of the process.
This content is for general information. Every inheritance file is different as to the structure of the property, the relations of the heirs, the position of the debt and the earlier transactions. Making a forecast of a definite legal result without an examination of the concrete event being made is not sound.
Where the contract of division is read from
The heirs, the list of the property and the form of the signature are read side by side. A share fraction that is not written in the file is not added to the contract. The contract of division is not put in the place of the certificate of heirship. An office in Çankaya does not change the competent authority.
Conclusion
This writing is for general information. The document, the period and the procedure of the concrete event should be read separately. There is no promise of a result by heart.
Counsel in Ankara does not write a share fraction that is not in the file.