Inheritance certificate in private international law

Upon the death of the heir, a number of problems arise, such as who can be heirs and to what extent, and how the inheritance will be transferred to the heirs. The inheritance certificate is a document that helps the heir to prove his/her inheritance title, shows the inheritance shares of the heirs and is valid until the contrary is proved. The heirs will be able to dispose of the inheritance with the title of heir provided by this document and in this capacity, they will be able to carry out inheritance transactions in many relevant institutions, especially the Land Registry Office, Social Security Institution and banks. As a result of the increase in relations with foreigners, inheritance relations with foreignness have increased and this situation has increased the importance of inheritance certificates in the field of international private law. For this reason, it has become necessary to evaluate the inheritance certificate within the scope of jurisdiction, applicable law, recognition and enforcement. In this study, the differences of ideas in the doctrine regarding the jurisdiction rule that should be taken as a basis in determining the international jurisdiction of Turkish courts in the request for a foreign inheritance certificate are included. In this context, the discussions on whether the competent court shall be established in accordance with Article 43 of the LPCL, which regulates the jurisdiction of Turkish courts in cases related to inheritance, or in accordance with Article 384 of the CCP, which regulates the competent court in non-contentious jurisdiction, which is the jurisdiction rule in domestic law by reference to the general jurisdiction rule under Article 40 of the LPCL, are evaluated and our opinion is given. The law to be applied during the issuance of the inheritance certificate shall be determined in accordance with the binding rule set forth in Article 20 of the LPCL. Although the relevant regulation, which was handled according to the unity system, made the estate as a whole subject to the personal status of the deceased, the unity system was moved away from with the regulation that Turkish law would be applied to the immovable properties located in Türkiye. The issues that fall within the scope of the law to be applied during the issuance of the inheritance certificate, which consists of showing the heirs and their inheritance shares, are discussed. In addition, public order intervention, directly applicable rule and preliminary issues are discussed. In particular, this study examines the inheritance rights of the surviving spouse in same-sex marriages, the inheritance rights of the surviving partner in non-marital cohabitation-based family models following the death of one partner, and the inheritance rights of parents of children born through surrogacy, and presents our scholarly assessments on these issues. Another key issue examined in this study concerns the impact of legal provisions that restrict the acquisition of immovable property by foreign nationals on the issuance of certificates of inheritance. Within this framework, the study highlights divergent scholarly views on whether such restrictive provisions should be applied at the stage of issuing a certificate of inheritance, given that the certificate may be utilized in the transfer of immovable property. The study proposes possible solutions and advocates for the view that the limitations imposed by Article 35 of the Land Registry Law and other relevant legislation on the acquisition of immovable property by foreigners should be addressed through a separate legal procedure subsequent to the issuance of the certificate of inheritance. As for the recognition of inheritance certificates obtained from foreign courts, it is seen that the discussions are centered on the condition of finalization of the decision, the condition of not falling within the exclusive jurisdiction of Turkish courts and the condition of not being contrary to public order. In this context, the idea that inheritance certificates of non-contentious jurisdiction could be recognized is defended. The study emphasizes that in transfers based on a certificate of inheritance recognized by a court decision, the legal provisions restricting the acquisition of immovable property by foreign nationals should be addressed through a separate legal procedure. For this purpose, it is argued that Article 37 of the Land Registry Law, which is considered an unsuitable provision in the context of recognition, should be revised. Keywords: inheritance certificate, heir, inheritance share, foreign factor, applicable law, same gender marriage, cohabitation models, competent court, recognition, unity system, limiting provisions.