Draw up a will in Turkey

Draw up a will in Turkey: yes or no?

I will get straight to the point. Judging the responses and queries that I received in the last couple of months, it appears that the Turkish law on inheritance is keeping a lot of people busy. For this reason in this article I will explain the details about ‘Wills’ in relation to owning property as a foreigner in Turkey.

According to the Turkish law there is no need to write a Will if your intention is to leave your property to your partner and children. The Turkish inheritance law meets this right automatically. In case one of the matrimonial partners dies, the home (property) will be inherited by the longest-living partner and the children of the deceased or only the children when there is no partner. Therefore it is a waste of time and money when you draft a Turkish will, foremostly when you already have a will in your own native country.

However, it is sensible to draw up a will when there are no children, you have a type of cohabitation which is not legitimized in Turkey (like a gay marriage or a partnership agreement) or you would like to donate to a third party who is not a legal inheritor of the deceased. The longest-living partner of the testator can not be disinherited with a will; children on the other hand can be disinherited, only up to the legitimate share of one half of the legal heritage.

Should you nevertheless still want to draw up a will, you will have the right to appoint one or more executors in this matter. An executor is someone (it does not necessarily have to be an inheritor) who is appointed and legally authorized to execute the wishes that are laid down in the will of the testator. On behalf of the inheritor the executor is also authorized to obtain a certificate of inheritance from the court, without the inheritors having to authorize the executor individually. This saves a lot of time and money for the inheritors who are not familiar with the bureaucracy of Turkey. 

An executor has the right to resign from his duties, in which case he must inform the local cantonal judge. However, once the executor has started to carry out his duties, he can not resign his responsibility without any warning. At any time the cantonal judge can call the executor to account.

The yearly general meeting of the owners association

An owner of an apartment complex or a housing resort, has the right (and in a way the duty) to attend the yearly meeting of the Homeowners association and to use his vote in favor or against the made decisions.

A lot can be written about the rights and the obligations of the owners association, but in this article I want to focus – without giving a comprehensive overview – on a few common mistakes or administrative measures during the meetings.

A Homeowners’ association consists out of three bodies:

• the General Meeting of the Members,
• the Board,
• the Financial Controller (Audit Committee).

The Board can consist out of one or three members and is responsible for the general daily management and for the execution of the decisions of the members (owners). Often the owners are not aware of this rule and have appointed too many or too few Board members. The appointment of two Board members is a valid reason to declare the meeting void.

The members should also appoint a financial supervisor or an Audit Committee. Legally the supervisor/Audit Committee should consist out of one or three members and controls the yearly revenues and expenditures made by the Board. The Audit Committee has to be accountable for this at the time of the meeting. If no supervisor/Audit Committee has been appointed, the members have the own right to check the yearly finances of the Board. You can imagine that this is unfeasible in case of very large apartment complexes.

The Board should assemble the members at least once a year. This meeting is called the Annual General Meeting Homeowners Association. All other meetings will be regarded as Exceptional Meetings Homeowners Association. Before the meeting takes place, the votes are counted by means of an attendance list. Subsequently a chairman and a minutes secretary are appointed. The chairman of the Board is not necessarily the chairman of the meeting. The meeting chairman will lead the meeting following the agenda that is been received by the members, at least 15 days prior to the meeting taking place. The secretary records the minutes of the meeting in the desired language. The minutes are not to be confused with the decisions that must be written in the decision book.

Every Homeowners Association has to have a decision book as well as a cash book, of which all pages are notarized. The revenues and expenditures of the Board must be recorded in a cash book. All decisions taken during the meeting, as well as decisions taken by the board outside these meetings, are to be recorded in a decision book. The decisions taken at the meeting should be signed by the present members. Preferably after the meeting these decisions are recorded in the book by hand, but it is also possible to record a printed version as long as everyone who was present initialed the print out of the decision. It is very important for the execution of the decisions to record the decisions correctly in the decision book, for example the collection of the monthly contribution fees of the owners.  

A common misconception is that signing the attendance list equals the approval of the decisions that are taken during the meeting. Every member should sign the decisions individually and, if applicable, comment next to the signature why he does not approve the decision.

Power of Proxy
When an owner cannot be present at the General Meeting, his vote can be cast with a simple power handed over to a third party. This person does not need to be an owner. The power should mention the name of proxy holder and should mention the meeting details. The power has to be signed. The power is personal, you don’t have to give a power for each residential unit. Once a power of attorney is given, the proxy holder can vote on behalf of the principal for each residential unit of the principal. (Sample of powers are available on this website)

In case that a unit is jointly owned (as by spouses), the owner who is present at the meeting needs to be given power of attorney in writing by the other owner. Usually this is executed quite well, it is just very important to hand over an original of the power of attorney in writing to the proxy holder or the board. A copy is not a legally binding document. 

The relationship between customer and bank

Turkey has comprehensive laws on the protection of consumers’ rights. Two years ago I wrote an article about these rights in the context of purchasing a property. This time I want to address Consumer Rights in the context of banking services. Many of you will already use banking services in Turkey and most likely a significant proportion of you will also use specific banking services, such as a credit card, personal loan or home purchase using a mortgage. This article relates to personal loans and loans taken out in connection with the purchase of property.

When making loans the bank or financial institution concerned must follow strict rules laid down in the laws and regulations on consumer protection. The financial institution must ensure that a written agreement is drawn up with the consumer and that the consumer is provided with an original copy. The agreement must cover a range of points, including the amount of the loan, the calculation of interest, the total amount payable, the dates that repayment is due, any deposits, the amount of interest payable upon default, terms and conditions that apply to earlier payment possibilities, etc.

Independent on what was stipulated; a financial institution cannot start making automatic collections unless the customer has failed to make two consecutive repayments. The financial institution must also give a non-paying customer one week’s notice in writing (in case of personal loans) or one month’s notice in writing (in the case of a mortgage) of their obligation to make repayments.

The loan agreement with the financial institution may also be signed by a third party acting as guarantor, for example your wife or close relative. The financial institution is not permitted to make automatic collections from this person, until the customer’s personal deposit has been used up.

Despite the law talking about deposits, a financial institution cannot demand a senet’ from the customer. If this does happen, you can claim a refund of the senet. Any loss arising from the collection of a ‘senet’ by a third party, to whom the senet has been surrendered by the financial institution, can be reclaimed from the financial institution. I frequently encounter cases of financial institutions charging the customer all sorts of costs under the guise of administrative charges, expert costs, etc. Unless the financial institution can justify such costs with a receipt or invoice, these kind of ‘major’ costs cannot be passed on to the customer. For example, in securing a mortgage for a holiday home, a bank charges 3000 TL in expert costs (expert costs set by the bank), while the actual cost of the expert come to no more than 600 TL. This is not legitimate. The financial institution can charge the customer up to 600 TL and no more. If, regardless of this, the bank charges a greater amount, the customer can reclaim the excess, even if he agreed to the greater amount at the outset. Lawsuits taken out in respect of consumer rights are usually much more speedy and cost-effective, and provide more security to the claimant in the capacity of the consumer.