Succession Notes

Succession Notes

Atty. Noel Neil Q. Malimban, CPAAugust 30, 2004

General Provisions

What is Succession?Succession is a mode of

acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (Art. 774, New Civil Code (NCC), unless otherwise indicated)

The definition implies that there are other modes of acquiring ownership. What are these other modes?

Apart from testate or intestate succession, the other modes are:

(a) Occupation;(b) Intellectual Creation;(c) Law (for instance, possession since

June 12, 1945 under the Public Land Law);

(d) Donation;(e) Tradition;(f) Prescription.

Whose properties are being transferred?

The general term applied to the person whose property is transmitted through succession is ‘decedent,’ whether or not he left a will. If he left a will, he is also called the ‘testator.’ (Art. 775)

To whom is the transfer being made?

The inheritance is transferred to the decedent’s heirs who are those called to the succession by the provision of a will or by operation of law. (Art. 782, 1st par.)

They may also be transferred to devisees and legatees who are those persons to whom gifts of real and personal property are respectively given by virtue of a will. (Art. 782, 2nd par.)

What are being transmitted?In succession, all the property,

rights and obligations which are not extinguished by death, of a person are transmitted and are collectively called the inheritance. (Art. 776)

The inheritance includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (Art. 781).

When is the transfer effective?The rights to the succession are

transmitted from the moment of the death of the decedent. (Art. 777)

What are the kinds of succession?Succession may be:

Testamentary; Legal or intestate; or Mixed. (Art. 778)

What is testamentary succession?Testamentary succession is that

which results from the designation of an heir, made in a will executed in the form prescribed by law. (Art. 779)

What is legal or intestate succession?

That kind of succession, which takes place by operation of law by reason of any of the following:

1. A person dies without a will, or with a void will, or one which has subsequently lost its validity;

2. When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed. (See mixed succession, infra)

3. If the suspensive condition attached to the institution of heir does not happen or is not fulfilled;

4. If the heir dies before the testator;5. If the heir repudiates the

inheritance, there being no substitution, and no right of accretion takes place;

6. When the heir instituted is incapable of succeeding. (Art. 960)

What is mixed succession?Mixed succession is that effected

partly by will and partly by operation of law. (Art. 780)

It takes place specifically when the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed. (Art. 960, 2)

Who is an heir?An heir is a person called to the

succession either by the provision of a will or by operation of law. (Art. 782)

Heirs may either be compulsory or voluntary.

A compulsory heir is one entitled to a legitime or a share in the testator’s property, as a matter of right, in accordance with the proportions provided by law. One is a compulsory heir only with respect to his legitime.

A voluntary heir is one who is not entitled to inherit as a matter of right from the testator but nevertheless shares in the testator’s property only because he was instituted in the will as such.

What makes a person a compulsory heir is his relationship to the testator. What makes a person a

voluntary heir is not his relationship to the testator, but the fact that he shares in the free portion of the estate, and to that extent only.

A compulsory heir, therefore, can be a voluntary heir (or a legatee or devisee, for that matter), if he is given a share in excess of his legitime, that is, a share taken from the free portion of the estate. He is a compulsory heir with respect to his legitime while he is a voluntary heir with respect to the excess.

But a stranger can only be a voluntary heir, (or a legatee or devisee, for that matter), never a compulsory heir, for the obvious reason that a stranger is not entitled to a legitime.

Who are compulsory heirs?The following are compulsory

heirs:1. Legitimate children and

descendants, with respect to their legitimate parents and ascendants;

2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

3. The widow or widower;4. Illegitimate children. (Art. 887, in

rel. Art. 165, FC)

What are the two types of compulsory heirs?

Compulsory heirs may either be:1. Primary

a. Legitimate children and descendants, with respect to their legitimate parents and ascendants;

b. The widow or widower; c.Illegitimate children.

2. Secondary a. Legitimate parents and

ascendants, with respect to their legitimate children and descendants;

b. Illegitimate parents and ascendants, with respect to

their illegitimate children and descendants.

Why is the distinction relevant?The distinction is relevant because

primary compulsory heirs are never excluded nor do they exclude one another. Secondary compulsory heirs are excluded by legitimate children and descendants (Art. 887, no. 2) and, if the testator is illegitimate, by illegitimate children and descendants. (Art. 903, second sentence)

Who are devisees? Legatees? Devisees – one given a gift of real

property in a will. Legatees – one given a gift of

personal property in a will.(Art. 782, 2nd par.)

How are heirs distinguished from devisees and legatees?

An heir is distinguished from devisees and legatees as follows:

Heirs may exist in either testate or intestate succession while devisees and legatees exist only in testamentary succession because they are given specific property through a will.

In preterition, an instituted heir gets nothing, while devisees and legatees get the property given to them as long as the legitime is not impaired.

Heirs succeed by universal title while legatees and devisees succeed by particular title. In other words, Heirs share proportionately in the testator’s estate after deducting the value of devises and legacies while devisees and legatees receive determinate items of property from the testator’s estate.

Why is the distinction important?The distinction is important

because heirs are treated differently from legatees and devisees when it comes to:

a. Preterition; b. Ineffective disinheritance; and c. After-acquired property.

What is preterition or pretermission?

Preterition is the total omission in inheritance of one or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator. (Art. 854)

An heir is not necessarily preterited if he is omitted in a will. It may be that he has already received an advance of his inheritance through donation. Thus, in such a case, the remedy is to complete his legitime. The institution is not annulled because there is no real preterition.

What is imperfect disinheritance?It is one without a specification of

the cause (no cause), or for a cause the truth of which, if contradicted, is not proved (false cause), or which is not one of those set forth under the law (illegal cause). (Art. 918)

What is the effect of preterition?Preterition shall annul the

institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. (Art. 854)

What is the effect of imperfect disinheritance?

Imperfect disinheritance shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (Art. 918)

Whereas the institution is totally annulled in preterition, except as to legacies and devices, in imperfect disinheritance, the institution of heir is only partially annulled in order to complete the legitime of the disinherited heir.

What is the consequence of a valid disinheritance?

A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (Art. 915)

For disinheritance to be valid, it must be effected through a will wherein the legal cause therefor shall be specified. (Art. 916)

What are the conditions for a valid disinheritance?

The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate:

(1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue;

(2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

(3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false;

(4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator;

(5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

(6) The loss of parental authority for causes specified in this Code;

(7) The refusal to support the children or descendants without justifiable cause;

(8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.

The following shall be sufficient causes for disinheriting a spouse:

(1) When the spouse has been

convicted of an attempt against the life of the testator, his or her descendants, or ascendants;

(2) When the spouse has accused the testator of a crime

for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false;

(3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made;

(4) When the spouse has given cause for legal separation;

(5) When the spouse has given grounds for the loss of parental authority;

(6) Unjustifiable refusal to support the children or the other spouse.

What is the status of after-acquired property?

Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (Art. 793)

This rule, however, applies only to legacies and devises because legatees and devisees succeed by particular title while heirs succeed by universal title. (Paras supports this view)

Wills

What is a will?A will is an act whereby a person is

permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. (Art. 783)

What are the characteristics of a will?

A will has the following characteristics:

It is a strictly personal act; Statutory; Unilateral; Solemn or formal;

There must be animus testandi; Testator must have testamentary

capacity; Effective mortis causa; Essentially revocable or

ambulatory.

What are the formalities of a will?It depends. A notarial will must

be executed with the following formalities:

1. It must be in writing; (Art. 804)2. It must be executed in a language

or dialect known to the testator; (Art. 804)

3. It must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction; (Art. 805, par. 1)

4. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign each and every page thereof, except the last, on the left margin. (Art. 805, par. 2)

5. All the pages shall be numbered correlatively in letters placed on the upper part of each page. (Art. 805, par. 2)

6. It must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another; (Art. 805, par. 1)

7. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another; (Art. 805, par. 3)

8. It must be acknowledged before a notary public by the testator and the witnesses. (Art. 806)

A holographic will on the other hand, must be with the following formalities:

1. It must be entirely written, dated, and signed by the hand of the testator himself; (Art. 810)

2. It must be written in a language or dialect known to the testator; (Art. 804)

A holographic will is subject to no other form, may be made in or out of the Philippines, and need not be witnessed. (Art. 810)

However, when applicable, the following rules shall be observed in holographic wills:

1. In case of any insertion, cancellation, erasure or alteration, the testator must authenticate the same by his full signature; (art. 814)

2. The dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions; (Art. 812)

3. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (Art. 813)

What is attestation?It is the mental act of witnessing

the signing of the will to see and note that the signatures exist as a fact. It is undertaken by witnesses only.

What is subscription?

It is a manual act of affixing the signature by the testator and his witnesses for identification purposes.

What are the types of ambiguities in a will?

Ambiguities may either be:a. Intrinsic ambiguity – or latent

ambiguity. One which does not appear on the face of the will such as when there is an imperfect description, or when no person or property exactly answers the description. (Art. 789)

b. Extrinsic ambiguity – or patent ambiguity. One that appears on the face of a will such as when an uncertainty arises upon its face as to the application of any of its provisions. (Art. 789)

What is evidence aliunde?It means extrinsic evidence. That

evidence which is obtained outside of the confines or four corners of a document or will. It is available as evidence to cure latent, not patent, ambiguities in a will.

What is the procedure in curing ambiguities in a will?

If the ambiguity is latent, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention.

If the ambiguity is patent, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding the oral declarations of the testator as to his intention. (Art. 789)

What law determines the validity of wills?

As to form or extrinsic validity, it would depend on the law in force at the time of execution.

As to intrinsic validity, it would depend on the law in force at the time of the decedent’s death.

What are the conflicts rules in the execution of wills?

The following are the conflicts rules:

1. In the case of a Filipino who executes his will:

a. In the Philippines – only Philippine Law applies, i.e., the Civil Code of the Philippines, because there is no conflict, there being no foreign element involved.

b. Abroad – he may choose either:

i. Philippine Law; orii. The law in the place of

execution.2. In the case of an alien who

executes his will:a. In the Philippines – he may

choose either:i. National Law;

or ii. Philippine

Law.b. Abroad – he may choose

either:i. His National Law, ii. The law in which he is

domiciled, iii. The law in the place of

execution, or iv. Philippine Law.

Who can make a will?All persons who are not expressly

prohibited by law may make a will. (Art. 796)

Persons of either sex under eighteen years of age cannot make a will. (Art. 797)

In order to make a will it is essential that the testator be of sound mind at the time of its execution. (Art. 798)

What is a Joint Will?It is a will executed by two or more

persons in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (Art. 818)

Are joint wills allowed in the Philippines?

Joint wills are void for being contrary to public policy and it is void even if the spouses did not institute each other as beneficiaries. Joint wills encourage the commission of parricide.

If joint wills are allowed in the place of its execution, may they be probated in the Philippines?

Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (Art. 819)

As stated, this applies only to Filipinos. So if foreigners execute a joint will abroad, such may be probated in the Philippines, but not in the case of Filipinos. If the joint will is between a foreigner and a Filipino, it may be probated as to that part pertaining to the foreigner only.

This rule is consistent with Article 17, paragraph 3 of the Civil Code which states that prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

To be considered of sound mind, what is required by law?

To be of sound mind, it shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (Art. 799, par. 2)

What is an acknowledging witness? What is attesting witness? Distinguish.

Absurd provisions of the Civil Code on Succession

Unfaithful wife with son; Repudiation; Right of representation of

illegitimate to illegitimate.

Institution of Heirs

What is institution of heir?Institution of heir is an act by

virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (Art. 840)

To what part of the estate does institution pertain?

An institution of heirs pertains only to the free portion of the estate. In other words, the legitime is not instituted because it proceeds as a matter of course.

What are the three basic principles of institution of heirs?

The three principles are:a. Principle of Equality – Heirs

instituted without designation of shares shall inherit in equal parts. (Art. 846)

b. Principle of Individuality – When the testator institutes some heirs individually and others collectively as when he says, “I designate as my heirs A and B and the children of C,” those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (Art. 847)

c. Principle of Simultaneity – When the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively. (Art. 849)

Substitution of Heirs

Legitime

What is legitime?Legitime is that part of the

testator’s property which he cannot dispose of because the law has reserved it for his compulsory heirs. (Art. 886, CC)

What are the respective legitimes of the different compulsory heirs?

The following are the respective legitimes of the different compulsory heirs: (see compulsory heirs, supra, for number references)

A. Sole Compulsory Heir:

1 - ½; (Art. 888, par. 1, CC)2 - ½; (Art. 889, par. 1, CC)3 - ½; (Art. 900, par. 1, CC)

1/3; (Art. 900, par. 2, CC); articulo mortis marriage; testator died w/in 3 months of marriage. ½; (Art. 900, par. 2, CC); lived as husband and wife for more than 5 years, despite 1/3 exception.

4 - ½; (Art. 901, par. 1, CC)

B. Concurrence of Compulsory Heirs; General rule on concurrence: (See relevance of distinction of primary and secondary heirs, supra.)

If the testator is legitimate, his legitimate children and legitimate descendants exclude his legitimate parents and legitimate ascendants. (1 excludes 2). (Art. 887, no. 2)

If the testator is illegitimate, in addition to the exclusion above, his illegitimate children and

descendants also exclude his illegitimate parents and ascendants. (4 excludes 2). (Art. 903, second sentence)

C. Proceeding from the general rule on concurrence, the following are the only possible combinations of compulsory heirs and the summary of their legitimes:

1-3 - 2 kinds:a.

1 LC - ½; ¼

b.

2 or more LC - ½; share equal to 1 LC

1-4 - ½; half of share of each LC (regardless of no. of LC or IC)

2-3 - Legitimate testator: ½; ¼ Illegitimate testator: ¼; ¼

2-4 - ½; ¼ (not possible if testator is illegitimate)

3-4 - 1/3; 1/31-3-4

- 2 kinds:

a.

Only 1 LC - ½; ¼; ¼

b.

2 or more LC - ½; equal to one LC; half of each LC

2-3-4

- ½; 1/8; ¼ (not possible if testator is illegitimate)

Note, that in cases where the testator is illegitimate, the combinations 2-4 and 2-3-4 are not possible. (Art. 903, second sentence)

D. The legitimes, with their legal bases, follow: (testator is legitimate):

a. 1-3; where there is only one legitimate child, with surviving spouse.

LC - ½ of the estate

SS - ¼ of the estate, taken from the free portion

Legal basis:The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. (Art. 888, par. 1)

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (Art. 888, par. 2)

If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. (Art. 892, par. 1)

The legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. (Art. 892, par. 3)

b. 1-3; where there are 2 or more legitimate children with surviving spouse.

LC - ½ of the estate to be divided equally among themselves.

SS - Share equal to one LC, taken from the free portion.

Legal basis:If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. (Art. 892, par. 2)


c. 1-4; LC, regardless of number with IC, regardless of number.

LC - ½ of the estate to be divided equally among themselves.

IC - Half of the share of each LC, taken from the free portion.

Legal basis:The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. (Art. 888, par. 1)


The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (Art. 176, Family Code)

The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator. (Art. 895, par. 3, first part)

d. 2-3; legitimate parents regardless of number with surviving spouse.

LP/A

- ½ of the estate to be divided equally when applicable.

SS - ¼ of the estate, taken from the free portion.

Legal basis:The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children. (Art. 889, par. 1)

The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (Art. 889, par. 2)

If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. (Art. 893, par. 1)

This fourth shall be taken from the free portion of the estate. (Art. 893, par. 2)

e. 2-4; legitimate parents or ascendants regardless of number with illegitimate children regardless of number.

LP/A


IC - ¼ of the estate divided equally, taken from the free portion.



Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (Art. 896)

f. 3-4; surviving spouse with IC regardless of number.

SS - 1/3IC - 1/3; to be divided

equally

Legal basis:If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. (Art. 894)

g. 1-3-4; where there is only one LC; SS; IC regardless of number.

LC - ½ of the estate SS - ¼ of the estate,

taken from the free portion.

IC ¼ of the estate or remainder divided equally, as taken from the free portion.

Legal basis:

The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. (Art. 888, par. 1)


If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. (Art. 892, par. 1)



The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be satisfied. (Art. 895, par. 3)

h. 1-3-4; two or more LC; surviving spouse; IC regardless of number.

LC - ½; to be divided equally

SS - Share equal to each

LC, taken from the free portion.

IC Half the share of one LC or remainder divided equally, as taken from the free portion.

Legal basis:If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. (Art. 892, par. 2)




i. 2-3-4; legitimate parents and ascendants; SS; IC regardless of number.

LP/A

- ½ of the estate

SS - 1/8 of the estate, taken from the free portion.

IC ¼ of the estate,

taken from the free portion.



When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (Art. 899)

E. Legitimes where testator is illegitimate:

Legitimacy or illegitimacy is determined with respect to one’s parents and ascendants. Illegitimate filiation, therefore, is relevant only when the parents or ascendants survive or concur with others.

a. Where only illegitimate parents survive:

IP - ½ of the estate

Legal basis:The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. (Art. 903, first sentence)

b. When the testator is illegitimate, there is only one possible instance where illegitimate parents may have a legitime, and that is the 2-3 combination, because in the other instances, they are excluded by either LC or IC. The sharing in a 2-3 combination, where the testator is illegitimate follows:

IP - ¼ of the estateSS - ¼ of the estate

Legal basis:If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (Art. 903, last sentence)

c.It should be noted that the above rules apply only to illegitimate parents of the testator and not to his other ascendants (GF, GM). In such a case a 2-3 combination with ascendants, not parents will yield the following:

IA - noneSS - ½ of the estate

OrIA - None; all free portion

Legal basis:

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (Art. 992)

This applies to both testamentary and intestate succession and this is referred to as the “Barrier of Illegitimacy.”

Intestate Succession

Important principles on intestate succession

The following are important principles in intestate succession:

1.Principle of Concurrence – Compulsory heirs are never excluded subject to the rule on Preference of Lines;

2.Preference of Lines – Descending direct line excludes the ascending direct line and the collateral lines. The ascending direct line excludes the collateral lines. This is an exception to the rule on concurrence.

3.Proximity – In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. (Art. 962)

4.Right of Representation – This right takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (Art. 972)

5.As to grandchildren – They always inherit by right of representation, where proper, whether or not they concur with uncles or aunts, except when all the uncles or

aunts repudiate their inheritance. (Art. 969)As to the latter case, they inherit in their own right.

6.As to nephews or nieces – When children of one or more brothers or sister of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (Art. 975)

7.The Barrier - An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (Art. 992)

8.As to a renouncer – A renouncer can repesent but cannot be represented. (Arts. 976 and 977)

9.Equality – Relatives in the same degree shall inherit in equal shares except:

a. Division in ascending line; (Art. 987, par. 2)

b. Division between full and half blood brothers or sisters; (Art. 1006)

c. Representation.

Who are the intestate or legal heirs?The intestate or legal heirs are as

follows:1. Legitimate children and

descendants, with respect to their legitimate parents and ascendants;

2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

3. The widow or widower;4. Illegitimate children; 5. Brothers, sisters,

nephews, nieces;6. Other collateral relatives

within the 5th civil degree;7. State.

What are the respective shares of the different intestate heirs?

In intestate succession, there is no free portion. Everything is disposed of to the concurring legal heirs. The following are the respective shares of the different intestate heirs: (see legal heirs, supra, for number references)

A. Sole Compulsory Heir:

1 - Entire estate; (Art. 980, CC)2 - Entire estate; (Art. 985, in rel.

986 and 987, CC); applies also to illegitimate decedent.

3 - Entire estate; (Art. 995, CC)4 - Entire estate; (Art. 988, CC)5 - Entire estate; (Art. 1003, CC)6 - Entire estate; (Art. 1010, CC)7 - Entire estate; (Art. 1011, CC)

B. Again, proceeding from the general rule on concurrence, the following are the only possible combinations of intestate heirs where the decedent is Legitimate:

1-3 - 1:1 proportion; Unlike in testate succession, there is only one rule here regardless of number of LC, by virtue of Santillon v. Miranda.

1-4 - 2:1 proportion2-3 - 1:1 proportion;

(applies whether testator is legitimate or not)

2-4 - Legitimate testator: 1:1 proportion; (not possible where testator is illegitimate, 2 is not entitled per Art. 903)

3-4 - 1:1 proportion;1-3-4

- This is of 2 kinds: Only 1 LC; or more than 1 LC.

a.

2:1:1 proportion

b.

2:2:1 proportion

2-3- - Legitimate testator:

4 2:1:1 proportion (not possible where testator is illegitimate)

3-5 - 1:1 proportion

Note, that in cases where the testator is illegitimate, the combinations 2-4 and 2-3-4 are not possible. (Art. 903, second sentence)

The combination 3-6 is not possible because the right of representation in the collateral line takes place only in favor of the children of brothers or sisters, whether they be of the full or half-blood. (Art. 972, par. 2)

The combinations 1-5, 1-6, 2-5, 2-6, 4-5, 4-6, 2-5 and 2-6 are not possible because of the principle of preference of lines .

The combination 5-6 is not possible because of the principle of proximity.

C. The shares are as follows (decedent is legitimate):

a. 1-3; regardless of number of LC, with surviving spouse.

LC - Share of each LC is equal to SS

SS - Share equal to one LC

Legal basis:If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children. (Art. 996)

One surviving child - If there is only one legitimate child surviving with the spouse,

since they share equally, one-half of the estate goes to the child and the other half goes to the surviving spouse. Although the law refers to "children or descendants," the rule in statutory construction that the plural can be understood to include the singular is applicable in his case. (Santillon v. Miranda, June 30, 1965, citing Tolentino, Civil Code of the Philippines, Vol. III, p. 436.)

b. 1-4; LC, regardless of number with IC, regardless of number.

LC - One LC double that of one IC.

IC - Half of the share of each LC.

Legal basis:If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895 [Now Art. 176 of the Family Code]. (Art. 983)


c. 2-3; legitimate parent/s with surviving spouse.

LP/A


SS - ½ of the estate

Legal basis:When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate

parents or ascendants to the other half. (Art. 997)

Note that the sharing is the same if the decedent is illegitimate. (Art. 903, by analogy)

d. 2-4; legitimate parent/s or ascendants regardless of number with illegitimate children regardless of number.

LP/A


IC - ½ of the estate divided equally.

Legal basis:If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. (Art. 991)

e. 3-4; surviving spouse with IC regardless of number.

SS - ½ of the estateIC - ½ of the estate

Legal basis:If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. (Art. 998)

f. 1-3-4; where there is only one LC; SS; IC regardless of number.

LC - ½ of the estate

SS - ¼ of the estateIC ¼ of the estate or

remainder divided equally

Legal basis:When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. (Art. 999)

Note: The proportion in the above provision is 2:2:1, with the IC getting 1. This proportion may be applied only if there are 2 or more LCs. It cannot be applied where there is only one LC, because if this rule is literally applied, there will be no instance where the IC will have a share. Remember that even in intestate succession, the legitime of compulsory heirs must not be impaired. Thus, the following rules shall apply:

If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895, paragraph 3 [Now including Art. 176 of the Family Code]. (Art. 983)


If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to

one-fourth of the hereditary estate. (Art. 892, par. 1)



g. 1-3-4; two or more LC; surviving spouse; IC regardless of number.

LC - share in 2 partsSS - share is equal to the

share of one LCIC each IC shares half of

LC

Legal basis:When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. (Art. 999)

If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895, paragraph 3 [Now including Art. 176 of the Family Code]. (Art. 983)


The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. (Art. 895, 3rd

par.)

h. 2-3-4; legitimate parents and ascendants; SS; IC regardless of number.

LP/A

- ½ of the estate to be divided equally where applicable

SS - ¼ of the estateIC ¼ of the estate

divided equally

Legal basis:If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth. (Art. 1000)

i. 3-5; Surviving spouse with brothers, sisters, nephews or nieces.

SS - ½ of the estateBSNN - ½ of the estate

Legal basis:Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (Art. 1001)

Reserva Troncal

What is reserva troncal?Reserva troncal is a situation

where an ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (Art. 891)

Now is there merit. in the claim that as the portion of the property formerly owned by the sister of Justina Santos was still in the process of settlement in the probate court at the time it was leased, the lease is invalid as to such portion. Justina Santos became the owner of the entire property upon the death of her sister Lorenza on September 22, 1957 by force of article 777 of the Civil Code. Hence, when she leased the property on November 15, she did so already as owner thereof. As this Court explained in upholding the sale made by an heir of a property under judicial administration:"That the land could not ordinarily be levied upon while in custodia legis does not mean that one of the heirs may not sell the right, interest or

participation which he has or might have in the lands under administration The ordinary execution of property in custodia legis is prohibited in order to avoid interference with the possession by the court, But the sale made by an heir of his share in an inheritance, subject to the result of the pending administration, in no wise stands in the way of such administration."

Documents

Succession Notes