Estate Partition: Partition Agreement and Dissolution of Joint Ownership

Under joint ownership, no heir may dispose individually of his or her share; all dispositions require unanimity. This complicates transactions such as the sale or letting of immovable property or the creation of limited real rights over it.

Under TMK m.677, an agreement transferring an estate share between heirs requires writing. An agreement with a non-heir requires a notarial deed. It does not grant the outsider a right to participate in partition; it grants only a claim to delivery of what is allocated to the transferring heir at partition.

Under TMK art.676, the heirs may agree in writing on the partition of specific assets in the estate. The partition agreement requires the written form for validity; a separate land-registry transfer is required to register immovable property in the names of the individual heirs.

Because the partition agreement is freely shaped by the parties, it is not bound by the statutory shares. The heirs may freely choose for one to take cash, another to take an immovable, and so on.

Where the heirs cannot agree, any heir may bring an action for the dissolution of joint ownership (izale-i şuyu) before the Civil Court of Peace. Recourse to a mediator is a precondition to the action: under art.18/B of Law No. 6325, added by Law No. 7445, this requirement has applied since 1 September 2023 to disputes concerning the division of movables and immovables and the dissolution of joint ownership. The action concerns the movable or immovable assets in respect of which dissolution is sought.

Partition in kind or by sale depends on the property and legal conditions. Where sale is necessary, the judge appoints a sales officer under HMK m.322/2 and the Enforcement and Bankruptcy Code's sales rules apply. Proceeds are distributed according to the established inheritance/share entitlements and costs.

In inheritance disputes, the first step is to clarify the status of the heirs, the scope of the estate and any dispositions on death. Civil-registry records, certificates of inheritance, land-registry records, bank correspondence, the records of the opening of a will and any transfers made by the deceased during their lifetime should be reviewed together.

The time limits and types of action for matters such as reduction, testator collusion, renunciation of inheritance, annulment of a will and inheritance waiver differ from one another. Correctly identifying the date of knowledge, the opening of the estate, the opening of the will and the date of any renunciation declaration prevents the loss of rights.

Because intra-family transactions are often conducted without written documents, bank receipts, the values reflected in the deed, the testator's economic needs, witness accounts and patterns of actual use are particularly important. The earlier the evidence is prepared, the more soundly the legal framework of the dispute can be established.