I- CONTRACT OF LIFETIME CARE
1- Conditions and Elements
The contract of lifetime care, regulated under Articles 611 and following of the Turkish Code of Obligations No. 6098 (TCO), is an agreement in which the caregiver undertakes the obligation to care for and look after the care creditor until their death, while the care creditor undertakes to transfer a property or certain assets to the caregiver.
For the land registry office to draft a lifetime care contract, the person who will be the care creditor must declare their intention to transfer one or more of their immovable properties to the caregiver, while the caregiver must accept and declare their obligation to care for and look after the care creditor until their death.
The contract of lifetime care is a reciprocal contract that imposes obligations on both parties. The care creditor must always be a natural person. In contrast, the caregiver can be either a natural or legal person.
The parties may agree that the care creditor shall be a third party. There may be multiple care creditors, and likewise, there may be multiple caregivers.
2- Types
If the care creditor’s obligation is to be performed through a testamentary disposition, it falls under inheritance law. If it is performed through an inter vivos transaction, it is considered a contract of lifetime care under contract law.
Both types of contracts of lifetime care are subject to inheritance law provisions in terms of their formation and formal requirements, but different rules apply concerning their registration in the land registry.
3- Form and Authorized Authorities
According to the TCO, a contract of lifetime care is invalid unless it is executed in the form of an inheritance contract, even if it does not involve the appointment of an heir.
Pursuant to Article 545 of the Turkish Civil Code No. 4721 (TCC), which regulates the form of inheritance contracts, such contracts must be drawn up in the form of an official will. An official will is executed before an official officer and in the presence of two witnesses. The official officer may be a justice of the peace, a notary public, or another officer authorized by law.
If the contract of lifetime care involves the transfer of immovable property, the General Assembly of the Court of Cassation’s Unification of Jurisprudence Decision dated 10.12.1952, numbered 1952/4 Basis and 1952/5 Decision, stipulates that such contracts can also be executed before notaries public, justices of the peace, and land registry offices.
At land registry offices, contracts of lifetime care are documented as official deeds in accordance with Article 30 of the Regulation on Procedures and Principles for Official Deeds Executed by Land Registry Offices, published in the Official Gazette No. 27402 dated 10.11.2009. Moreover, pursuant to Article 24 of the Land Registry Regulation, published in the Official Gazette No. 28738 dated 17.08.2013, and Article 17 of the aforementioned Regulation, two witnesses must be present for the execution of a lifetime care contract.
Land registry offices can only execute inter vivos contracts of lifetime care. Under such agreements, the immovable property is registered in the name of the caregiver. Contracts stipulating that the immovable property shall be registered in the caregiver's name after the death of the care creditor or contracts involving the transfer of assets other than immovable property (e.g., movable property) cannot be executed by land registry offices.
Once an immovable property has been transferred to the caregiver under a contract of lifetime care, the caregiver is free to dispose of the property in any manner. If the caregiver passes away, the property is inherited by their legal heirs.
4- Registration in the Land Registry When Executed Before a Notary Public
When a contract of lifetime care is executed before a notary public, it may have both inter vivos and testamentary effects.
If the care creditor has undertaken to transfer the ownership of the immovable property after the execution of the contract, the property is registered in the name of the caregiver at the request of the care creditor (the owner). If the care creditor does not request registration, the registration can only be completed by a court decision. However, if the contract of lifetime care grants the caregiver the right to unilaterally request registration while the care creditor is still alive, the property may be registered in the caregiver's name upon their request.
If the care creditor dies before the registration of the property, the caregiver must request registration from the heirs. If the heirs refuse, the caregiver must obtain a court decision for registration.
If the contract of lifetime care specifies that the transfer of ownership shall only take place after the death of the care creditor, the transaction qualifies as a testamentary disposition under inheritance law. In this case, the caregiver cannot directly request registration from the land registry office upon the death of the care creditor. The registration can only be requested by the heirs of the care creditor or by obtaining a court decision.
If the care creditor is a third party, the registration must be requested by the owner of the property or their heirs, or obtained through a court decision.
5- Registration of a Contract of Lifetime Care with Heir Appointment Nature
A contract of lifetime care with the nature of an inheritance law transaction may involve either the transfer of an immovable property to the caregiver after the death of the care creditor or the appointment of the caregiver as an heir.
For a contract of lifetime care involving heir appointment, an inheritance certificate must be obtained in accordance with Article 20(a) of the Land Registry Regulation.
6- Statutory Mortgage in Favor of the Care Creditor
a) General Provisions
To secure their rights, the care creditor may establish a statutory mortgage on the immovable properties transferred to the caregiver. In such cases, the personal claim right related to the care obligation is secured by a real guarantee. The statutory mortgage must be registered in the land registry within three months. This period starts from the date the care creditor transfers the ownership of the immovable properties to the caregiver.
If the contract of lifetime care is executed at the land registry office, the statutory mortgage may be registered either at the same time as the contract or within three months following the transfer of ownership. If the contract is executed before a notary public, the three-month period starts from the date the property is registered in the name of the caregiver.
Since the three-month period is a peremptory time limit, any statutory mortgage requests made after its expiration will not be accepted by the land registry office.
b) Registration of the Mortgage
The statutory mortgage grants the care creditor the right to request its registration without requiring the consent of the caregiver. However, the claim amount to be secured must be determined. If the contract of lifetime care specifies this amount, the statutory mortgage is registered for that specified value. If no amount is specified in the contract, the parties may later agree on a value. If no agreement is reached, the value of the care obligation must be determined by a court.
To prevent the expiration of the three-month period while awaiting a court decision, the care creditor may request a provisional registration annotation under Article 1011 of the TCC.
Upon the care creditor’s request, along with a contract or court decision specifying the mortgage value, the land registry office will register the statutory mortgage. If the request is made jointly by the care creditor and the caregiver within the three-month period, the mortgage may be registered based on their agreed value.
c) Cancellation of the Mortgage
Since the care obligation ends upon the death of the care creditor, the statutory mortgage is canceled upon the caregiver’s request. Since the care claim is a personal right, the consent of the care creditor's heirs is not required for the cancellation of the mortgage.
The care creditor may also request the cancellation of the mortgage at any time.
II- REGISTRATION OF TESTAMENTARY DISPOSITIONS IN THE LAND REGISTRY
A testamentary disposition is a transaction whereby the deceased, through unilateral or bilateral legal acts during their lifetime, disposes of their estate, with legal consequences arising after their death.
In formal terms, testamentary dispositions include wills and inheritance contracts, while in material terms, they include heir appointment, bequest of specific assets, foundation establishment, and appointment of substitute heirs.
Under the TCC, the land registry office is not obligated to investigate whether a deceased person had a will or an inheritance contract. However, if such a document is encountered in the MERNIS records before or after the transfer of an immovable property, the matter must be immediately reported to the relevant court and civil registry office under Articles 595 and 596 of the TCC. Additionally, a notation indicating the existence of a will or inheritance contract must be entered in the land registry.
The presence of such a notation does not prevent transactions in the land registry; transactions may proceed with the acceptance of the legal consequences of the notation.
1- Heir Appointment
Heir appointment is a testamentary disposition where the testator designates one or more persons as their universal successors for the entirety or a specific portion of their estate. It may be done through either a will or an inheritance contract.
An appointed heir can be either a natural or legal person. The testator may also appoint a legal heir as an heir.
To constitute an heir appointment, the testator must designate one or more persons as heirs for the entire or a specified portion of the estate, in accordance with Article 516 of the TCC.
Appointed heirs, like legal heirs, receive an inheritance certificate.
Under Article 20(a) of the Land Registry Regulation, the inheritance certificate must be presented when an appointed heir requests registration.
An appointed heir is deemed to have acquired ownership at the moment of the testator's death, without requiring registration, similar to legal heirs. The inheritance certificate must specify the share of the appointed heir and, if applicable, the shares of legal heirs. Since inheritance certificates establish factual situations and kinship relations, they must include both appointed and legal heirs, which does not prevent registration transactions based on the certificate.
If the inheritance certificate merely mentions the existence of a will or inheritance contract without specifying the shares of the appointed heirs, the land registry office will not process the transfer. Instead, a notation stating, "There is a will/inheritance contract for ...," must be entered in the land registry for all immovable properties of the deceased.
If a will or inheritance contract does not explicitly indicate an heir appointment, and the court decision solely pertains to heir appointment, the land registry office cannot proceed with the transaction. In such cases, the land registry office will request a court-issued inheritance certificate specifying the appointed and legal heirs along with their respective shares. If no such certificate is provided, procedures will follow Article 20(b) of the Land Registry Regulation.
2- Bequest of Specific Assets
A bequest of specific assets occurs when the testator leaves ownership of particular assets, usufruct rights over part or all of their estate, or other patrimonial rights to a person without appointing them as an heir.
A bequest may be made through either a will or an inheritance contract.
The legatee may be a natural or legal person and may also be a legal or appointed heir.
To be entitled to the bequest, the legatee must be alive at the time of the testator’s death. The right to a bequest does not pass to the legatee's heirs.
A legatee is a particular successor. Ownership of the bequeathed asset does not automatically pass to the legatee upon the testator’s death. The legatee only acquires a personal claim right, meaning they must request the registration of ownership or real rights from the heirs.
Under Article 20(b) of the Land Registry Regulation:
If the request is made jointly by the legatee and the legal and appointed heirs, a certified copy of the will along with the probate court's decision confirming its opening and reading must be submitted.
If the request is made solely by the legatee, a probate court ruling specifically instructing registration must be presented.
If the deceased’s property was not directly registered in their name but instead transferred to legal heirs, enforcement of the will requires a probate court ruling containing a registration order and a finalization clause.
If a bequest is made via an inheritance contract, the legal and appointed heirs must submit a certified copy of the contract. If the request is made solely by the beneficiary, a probate court ruling ordering registration must be provided.
III- CASES OF LOSS OF INHERITANCE STATUS
1- Transfer of Inheritance in Cases of Renunciation, Waiver, Disinheritance, and Inheritance Disqualification
When issuing an inheritance certificate, the judge must consider cases in which inheritance status has been lost (renunciation of inheritance, waiver of inheritance, disinheritance, and disqualification from inheritance) and determine the heirs accordingly. The inheritance certificate must indicate who will receive the shares left vacant due to renunciation, disinheritance, waiver, or disqualification.
Inheritance transactions cannot be carried out in the land registry based on inheritance certificates that do not specify who will receive the shares of disqualified heirs.
According to Article 297(2) of the Code of Civil Procedure No. 6100, court decisions must clearly state the judgment result, explicitly show the rights and obligations imposed on the parties, be comprehensible, and be enforceable.
In cases where an heir loses their inheritance status, the land registry officer does not have the authority or responsibility to decide on the distribution of the disqualified heir’s share.
Thus, in cases where inheritance status has been lost, transactions are carried out based on a newly issued inheritance certificate, which reflects the new situation and specifies the heirs and their shares as determined by the court.
If an inheritance certificate mentions the loss of inheritance status but does not indicate the redistribution of the disqualified heir’s share, the land registry office will simply make a note in the records indicating the presence of such a situation.
2- Renunciation of Inheritance by All Closest Legal Heirs
If all closest legal heirs renounce the inheritance under Article 612 of the Turkish Civil Code (TCC), the inheritance is liquidated by the probate court. Any remaining assets after the liquidation are distributed to the entitled beneficiaries as if they had not renounced the inheritance.
If an inheritance certificate states that the closest legal heirs have renounced the inheritance under Article 612 of the TCC and that the inheritance will be liquidated by the probate court according to bankruptcy provisions, the land registry office will not process any inheritance transfer transactions.
In such cases, a note must be added to the registry under the deceased's property records stating:
"... In accordance with the inheritance certificate, the inheritance has been renounced by the heirs and will be liquidated by the probate court according to bankruptcy provisions."
3- Annulment of Renunciation of Inheritance by Creditors of the Heirs
Under Article 617 of the TCC, if an heir renounces the inheritance with the intent to harm their creditors, the creditors or the bankruptcy office may file a lawsuit for the annulment of the renunciation.
If the court decides to annul the renunciation, the inheritance is officially liquidated. After satisfying the creditors’ claims from the portion of the estate that would have belonged to the renouncing heir, any remaining assets are distributed to those who would have inherited them if the renunciation had been valid.
If a court annuls a renunciation of inheritance after the issuance of an inheritance certificate and after inheritance transfer transactions have been completed, the land registry office does not make any corrections to the registry based on the new inheritance certificate.
However, a note must be added to the deceased's property records stating:
"... In accordance with the court decision, the renunciation of inheritance has been annulled, and the inheritance will be liquidated by the probate court according to bankruptcy provisions."
