Execution Of A Will
After the notaries issue a will, they notify the relevant civil registry office to annotate it in the civil registry of the testator. In practice, the magistrates’ court usually becomes aware of the existence of the will upon the notification of the registry offices. When the court of peace somehow becomes aware of the existence of the will, it requests a copy of it from the issuing notary public. Then, it sends notices to all estimated heirs and notifies them of the day on which the will will be opened. The will is opened on the specified day. If the relevant persons do not object, or if their objections and lawsuits are concluded, the court decides that “the will shall be deemed to have been opened and read, and a certificate of inheritance shall be issued to the heirs who request it”.
Even if the terms “enforcement or implementation” are not mentioned, if it is stated in the decision that the will has been opened and read and the will has been opened and read and not objected by all heirs or even if objections have been made, these objections and lawsuits have been concluded, this decision is an enforcement decision and can be implemented. The fact that it is mentioned to issue certificates of inheritance to those who wish to do so strengthens this opinion.
REGISTRATION TO THE TITLE DEED ACCORDING TO THE WILL
After the decision on the enforcement of the will has been made and this decision has become final, the court shall issue a document (certificate of inheritance) to the legal and appointed heirs who request it, indicating that they are appointed heirs.
a) Registration Request of Legal Heirs:
The legal heirs may request a certificate of inheritance from the judge after the will is opened, read and enforced and this decision is finalized. In this certificate of inheritance to be given to the legal heirs, the name of the appointed heir, if any, is also included. This is because the appointed heir is also the heir of the estate within the proportion of the will. In this case, the legal heir, who is the creditor of the will, can request the Land Registry Office to carry out the transfer process with the certificate of inheritance he received. With this transfer process, the ownership of the immovable property is realized in the form of participation in inheritance.
b) Registration Request of Appointed Heirs
In the case of heirs appointed by a will, they may ask the judge to issue a certificate of inheritance showing that they are heirs after the will is decided to be executed. The appointed heir may be one or more than one person. Therefore, each of them has the authority to request a certificate of inheritance separately. After the appointed heir receives the certificate of inheritance, he/she is no longer different from the legal heir. He can apply to the land registry office alone and request the transfer of inheritance.
In such a case, the Land Registry Office performs the transfer on behalf of all the legal and appointed heirs in the certificate of inheritance brought by the appointed heir. As a rule, this transfer is registered as joint ownership. However, upon the request of all heirs (legal or appointed) or their authorized representatives whose names are mentioned in the probate certificate, the transfer (inheritance) can also be registered directly on the basis of joint ownership. In the request of the appointed heirs, there is no need to seek a copy of the will or the judge’s enforcement decision or registration letter in addition to the certificate of inheritance (TST.21/a). It is sufficient to bring only the certificate of inheritance.
c) Request for Registration on Behalf of the Testator of a Certain Property:
The person in whose favor a certain property is willed is not given a probate deed. Because this person is not the heir of a certain proportion of the estate, but the person to whom a certain property will be left. This person has a right of claim against the heirs and the estate, therefore he is called musaleh or testamentary creditor. After the enforcement of the will is decided, other heirs are given a certificate of inheritance, but the person to whom a certain property is bequeathed is not given a certificate of inheritance for this reason. Since he/she does not have a probate deed in his/her hand, as a rule, this person (the testate creditor) will ask the heirs or the executor of the will, if any, to register the willed property in his/her name.
1) Requesting the Registration in the Name of the Testate Payee by the Heirs:
The heirs or the executor of the will may directly register this certain property in the name of the testamentary creditor based on the certificate of inheritance, the certified copy of the will and the enforcement decision. This situation constitutes an exception to the rule of not being able to dispose without registration (as a requirement of respect for the will of the testator) (CC.705/2) In such a case, after the request of the heirs and the testate creditor is written in the registration request document, the name of the heir (if the heirs have transferred this property in the name of the heirs before this, the name of the heirs) is removed and the registration is made in the name of the testate creditor.
2) Request for Registration in the Name of the Testate Payee by the Executor of the Will:
If a testamentary executor has been appointed by the will, the testamentary executor may also register the specific property bequeathed in the name of the beneficiary to whom the specific property was left. For this purpose, the executor must submit a certified copy of the will. However, there is no need to seek a judge’s letter for registration. This is because the executor of the will is the representative of the heirs and the estate. Thereupon, the request of the executor of the will is entered into the registration request document by the land registry directorate and the registration is made as explained below. However, since the payer of the fee to be paid is the testament creditor, the fee accrual must be made on behalf of the testament creditor. Unless expressly stipulated in the will, it is not possible to cover this fee from the inheritance.
3) Request for Registration by the Testate Creditor Himself:
If the heirs or the executor of the will refrain from registering certain property in the name of the testamentary creditor, the testamentary creditor should apply to the court that decides on the execution of the will and request a letter to register the certain property left to him in the will in his name. The judge may issue such a letter to the testate creditor even at the very beginning of the matter when the court decides on the enforcement of the will.
The person in whose favor a certain property is bequeathed should apply to the relevant land registry directorate by taking a certified copy of the enforcement decision and the will together with this letter written by the judge for registration. This application is recorded in the registration request document at the directorate and the registration process is carried out in the name of the testament creditor as explained above.
There is an important problem in practice in this regard: After deciding on the execution of the will, judges refrain from writing a letter for the registration of certain property in the name of the testator. However, Article 21/b of the Land Registry Regulation stipulates that the director of the Land Registry must seek such a letter written by the judge in order to register the property. According to Article 600 of the Civil Code, a person to whom a certain property is bequeathed does not acquire the right of ownership without registration upon death. His right only consists of the right to demand that the ownership of this property be registered in his name.
For this reason, the testator shall ask the heirs or the executor of the will to register the ownership of this property in his/her name, and if they refrain from doing so, he/she shall apply to the court that decided on the enforcement of the will and request a letter to be issued to him/her for registration in his/her name and apply to the land registry office with this letter. The fact that the will has been decided to be executed does not mean the registration of certain property in the name of the testator in accordance with Article 600 of the Civil Code. It is obligatory for the court to notify this issue with a letter. If the court refrains from writing such a letter, the testate creditor will have to file a deed annulment lawsuit against the heirs for the registration of certain property in his/her name.
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