Heirs often have to address the complicated inheritance issue of how to divide a deceased person’s (decedent) properties in a way that none of them feels aggrieved and can live harmoniously with each other, especially after the estate’s partition.
The inheritance of the decedent’s properties is done by succession. Based on Title IV of Book III of the Civil Code of the Philippines, as amended, succession is distinguished depending on whether the decedent left a Will or not, or mixed.
Testamentary succession. Also known as “Devise,” the deceased person prior to his death (testator) prepares his Will and designates heirs who are relatives and or person/s not related by blood. A married woman may make a Will, without the consent of her husband, of her separate property or share in the common property.
Legal orintestate succession. Also referred to as “Descent,” this is the default mode of succession by legitimate and illegitimate children/relatives, spouse, or the State. It takes place when there is an absence of a Will; a void Will; if there are properties that are not included in the Will; the conditions attached to the designated heir/s do not happen; the heir/s die ahead of the testator; or are incapable of succession, among others.
Mixed succession. This occurs when the testator fails to dispose of all his property in his will. It is effected when partly covered by will and by operation of law.
Settlement of estate
The following are ways to settle the decedent estate:
• Extrajudicial settlement of estate. This is a procedure of dividing the estate of the decedent who left no Will; has no debt or debts were settled; and all heirs agree to the division of the estate.
In this faster way of settling the estate, heirs execute a notarized deed of extrajudicial settlement of estate on how the properties are to be divided among them, or an affidavit of self-adjudication if there is a sole heir. Only after posting a bond, registering the deed, publishing such notice of settlement in a paper of general circulation once a week for three consecutive weeks, and paying the estate tax can properties be transferred.
• Judicial settlement of estate. If there is no Will and the heirs cannot agree on how to divide the properties, they can secure a court-adjudicated settlement. A Petition for Intestate Settlement of Estate shall be filed, after which the court will appoint an administrator who will take charge of the estate, and pay off the obligations and debts. A Project of Partition showing how the estate will be divided should be submitted, and if approved, shall form the basis for distribution.
If a Will exists but there is an aggrieved party with concerns about the Will, said party shall file a Petition for Probate of Will for the purpose of determining if the Will complies with legal requirements. If the Will is valid, an executor will be appointed to administer the estate, settle the debts, if any, file the estate tax return and pay the tax. Only after these have been accomplished will the court order the estate’s division.
In both settlement modes, it does not end with an agreement on the estate’s division. Follow through tasks are needed such as applying, securing and or complying with other governmental requirements to complete the process.
Given the work involved, one should consult an estate lawyer or seek professional help in preparing the required documents and court filing.
(References used include Civil Code of the Philippines Annotated. Wills and Succession. Volume III, 2021 Edition by Justice Edgardo Paras; Real Property: Ownership and Registration. 2021 Edition by lawyers Victorino Mamalateo and Mary Joy Mamalateo-Jusay; and “Life after Death” by Divina Law, accessed online).
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Henry L. Yap is an architect, environmental planner, real estate practitioner and former professorial lecturer.