As is known, unfortunately, one of the most painful truths of life is death. And it requires the application of inheritance law rules in every death. There can be a derelict good but there cannot be a derelict right.For this reason, after death, all transferrable civil law relations must pass on to heir or heirs of the deceased.
As a matter of fact, this is clearly stated in Article 575 of the New Turkish Civil Code No. 4721 as follows:
‘The estate is opened with the death of the inheritor. All gains and sharing of inheritance made in the life of the inheritor is evaluated according to the condition of the inherited item at the time of death.’
‘The aim of inheritance law is, of course, to determine the future of the assets of the deceased, which have economic value and can be evaluated in money, and to regulate their transfer process to the heirs.
This entire asset is generally called ‘law estate’. Law estate is the value to be shared among the heirs in accordance with the legal inheritance rights.Inherited debts of the deceased on the date of death constitute another dimension of the law estate.However, our article will exclude this issue since it is mostly designed to share the values of the assets among the heirs.
2. Legal Property Sharing can be handled through Consensual Inheritance Division Contract.
Upon death the law estate, if there are more than one heir, passes to a joint management.This partnership is referred to in legal terminology as ’joint-ownership’. In this case, all heirs have ownership on the estate.However, they do not have the authority to sell, rent or transfer individually on the estate.
The main goal of sharing the inheritance is that the heirs can dispose on their personal and independent rights on the inheritance at their own will.It is precisely for this that heirs need to be liberated from the others in terms of their rights on the estate.
The ideal, of course, is that all heirs receive from the inherited estate they deserve without any problems.However, this is not always the case in the usual course of life.In fact, heirs often disagree. And file a case for elimination of joint partnership which is both a materially burdensome and waste of time.Psychological tensions in this process are another aspect of the situation.
‘Consensual Inheritance Division Contract’is just about a solution in this matter.With this agreement, the heirs shall determine how and in what way the inheritance shall be shared by their free will.They sign the contract andso bind themselves legally.
In order for this agreement to be valid, all heirs must determine and accept who and how much will receive from the estate and how to share it with their free will without being under pressure or coercion.More specifically, all heirs should agree on the process and consequences of sharing.The agreement cannot be completed with the rejection of some of them while accepted by the others.
3. Mediation in Goods Sharing Process
It is precisely in such cases that an arbitrator to whom the parties, ie legal heirs, ‘may apply voluntarily’, will be able to best manage the process.
- If it is desired the disputes regarding the goods sharing be resolved in a short time,
If the heirs want to settle disputes and maintain family relationships for the rest of their lives,
- If the case for the elimination of joint partnership and an open trial will harm the parties,
- If there is hostility or lack of confidence among the heirs,
If other dispute resolution methods cannot produce a suitable solution for the heirs,
- If the heirs cannot agree on the value of the estate,
- If there are possible settlement options among the heirs,
-If the heirs are tired of fighting each other and therefore making expenses,
- If the negotiations were in progress and the participation of a trained mediator in the negotiations would be beneficial,
Applying the mediation process will be the best way for the heirs.In this way, artificial obstacles to the solution will be eliminated.The most important objective in such cases is for the mediator to remove or reduce personal hostilities by allowing private meetings and heirs to disclose their views.This aim is suitable for the purpose of the establishment of the mediation system.
In the end of this process, the heirs will end both a troublesome situation and a conflict with the agreement and consensual inheritance contract.Because, according to paragraph 5 of the Law No. 7036 added to Article 18 of the Law on Mediation in Civil Disputes numbered 6325;
‘In case an agreement is reached at the end of the mediation activity, the parties cannot file a case concerning the matters agreed upon.’
In the justification of Law no. 7036, this new regulation is defined as “prohibition of suing“.
In this case, there will no longer be the need to apply for an upper judicial remedy for the heirs.The mediation process exists to simplify our lives as the best way to save on the costs of litigation and time.
As we have clearly explained above, resorting to the mediation process benefits the parties in many ways. In our opinion, the most important benefits are ‘timing’, ‘economy’, ‘confidentiality’ and ‘prohibition of suing’.
Mediation; it is the most ‘friendly’ way of settling the dispute for the parties who wish to maintain their commercial, professional or personal relations after such disputes. You have many reasons to choose this remedy.