One of the most classic situations in Filipino family telenovela drama is when the siblings argue over the partition of their parents’ estate property among themselves, bringing in the legal offspring and the ‘anak sa labas,’ or illegitimate children. This is not only shown on national television, but it also happens in real life. It is unavoidable for children to argue about possessions that their parents have worked hard to acquire. Who would not want free property? Fortunately, there is a law in the Philippines that specifies how to divide inherited property between siblings.
“Live a simple life because you can’t bring your physical possessions to Paradise when you die.” As Filipinos, we are typically taught by our parents that Heaven is a place where we go after death here on Earth, to be at peace with our Creator. The elderly mostly warns us that we will not be able to bring our materialistic possessions into the spiritual world, so it should be better to live a simple life.
Furthermore, this is a good thing for the children you will leave behind because problems over distributing your valuable possessions can be avoided as greed emerges. However, if your family is extremely affluent and you anticipate a judicial or extra-judicial fight arising from the parents’ possessions, legal expertise will come in handy. This article will explain how to divide inherited property between siblings in the Philippines.
As disclaimer, it is advisable to consult with an attorney if you have specific problems as this article is to provide only general knowledge. Furthermore, if you want to learn more about Estate Tax you can read it here: Few Things to Know About Estate Tax
Writing a Will in Anticipation of Death
A person who anticipates his or her death may write a holographic will which enables a person to direct the inheritance of his or her property following his death in accordance with Philippine law. A will is a physical document that must be followed by specified procedures. A legally binding Philippine will must always be in writing.
The Will must be one of the following:
- Written, signed, and attested to before a Notary by the Testator and three witnesses (A Notarial Will); or
- It must be handwritten, dated, and signed entirely by the Testator A will in the Philippines is a legal document (A Holographic Will).
It is important to take note that because a Philippine Will must always be in writing, other forms of communicating how one wishes for his estate to be dispersed are not recognized Wills under Philippine law. Hence, a video recording of the deceased narrating how he wishes his property to be distributed among his Heirs is not a valid Will. A private letter written by the deceased to her children in which she simply suggests how the Estate should be divided among them is not a valid Will. As a result, in a Philippine Probate Court, these cannot be enforced as a Last Will and Testament.
A court proceeding for Probate of Will is required in the Philippines to enforce a Will. A Will probate is required before the Will can be used. In addition, a Will Probate establishes to the court that the document is the Testator’s Last Will and Testament. A judicial case must be filed with the Regional Trial Court to settle the Estate. The Heirs must be served with notice of the matter, and a trial is required. To admit the Will to Probate, the evidence must be submitted, and witnesses must be called. A Will that has not been Probated has no effect and cannot transfer property. A Will must go through the Probate process.
In all instances, Inheritance Law Philippines determines who the heirs are and who inherits. In Filipino, those who inherit are referred to as “Heirs” or “Tagapagmana.” When there is no Will, and even when there is a Will, these Heirs and the sum they inherit are determined by Philippine Inheritance law. The law specifies how an inheritance should be divided. It is critical to realize that a Last Will and Testament can only specify the Heir of a “Free Portion” of an Estate. A Free Portion is the amount of the Estate that remains after the Legal Heirs of the deceased (the Compulsory Heirs) have been awarded their portion under Philippine Inheritance Law.
What Happens if there is No Will?
If there is no Will, the Estate can still be distributed among the Heirs. There are two ways to divide inherited property between siblings, it is done by either choosing extrajudicial and judicial settlements:
If the heirs had chosen to divide the Extrajudicial Settlement of the Estate, which is a legal document in which the Heirs unanimously agree on how to split the Inherited Property. Following that, there are pre-requisites to consider as it should include the following details:
- That the deceased left no will or testament, or that his debts were paid
- You and your co-heirs’ relationship to the deceased, as well as the absence of any other heirs
- Description and specifications of the properties, as well as how they will be divided
Afterwards, everyone should sign and notarize the paper. Then, A notice will then be published in a general circulation newspaper for three weeks. You will furnish the Bureau of Internal Revenue (BIR) with proof of publishing and the extra-judicial settlement.
It is also important to know that this settlement is less costly than having a judicial settlement since an Extrajudicial Settlement offers the advantage of avoiding court costs, such as the hefty filing fees for a Probate Case (which are approximately 2% of the projected worth of the Estate for large Estates) and trial costs. However, it is entirely contingent on the Heirs’ unanimous consent on the partition of Property.
If the Heirs cannot reach a unanimous agreement, an Extrajudicial Settlement is not conceivable. Such an Estate cannot be handled without going to court, which is why a Will should have been prepared in the first place. In a legal settlement, the court will appoint an administrator to administer the estate, as the title implies. This administrator will ensure that the estate’s obligations are met. Debts, recurrent maintenance, administrative fees, and even taxes are examples of these commitments. The administrator may also provide a proposal to the court on how to split the estate.
This plan is known as the Project of Partition. If the court orders this plan, the administrator will carry it out and distribute the inheritance to the heirs. Note that the applicable taxes and fees must be paid within the time frame specified by law. Following that, the heirs must obtain the proper certifications. These certifications are required for the properties to be transferred to their names.
The benefit of a judicial estate settlement is that there is an objective third party, the court. The court will ensure that the estate is settled legally and fairly. This is especially crucial when the heirs cannot agree or do not see eye to eye. However, the specific procedures and potential remedies under a judicial settlement might be extremely intricate. The court will likely take a long time to reach a final verdict.
Summary of Philippines Inheritance Law on Dividing Inherited Property among Siblings
Whether or not a person leaves a will, the distribution of their inheritance must follow the criteria outlined in the Philippine Inheritance Law.
- A portion of the deceased’s property, known as legitimes, is allotted by law to compulsory heirs, who are classed as follows:
- The deceased’s legitimate offspring and/or descendants are the primary beneficiaries.
- Secondary – The deceased’s legitimate parents and/or ascendants (grandparents or great-grandparents) as well as illegitimate parents.
- Concurring – The deceased’s illegitimate offspring and/or their descendants, as well as the surviving spouse.
Concurring heirs and principal heirs are on the same rung of the inheritance ladder, which means they are all entitled to receive the deceased’s property. Only primary heirs are secondary heirs eligible to inheritance.
- If the deceased leaves a will, the following principles govern the disposition of their assets:
- Legitimate offspring are entitled to a share of the estate, which must be shared equally among them. The other half of the estate is known as the “free portion.”
- If there is just one legitimate child, the surviving husband is entitled to one-fourth of the estate. If there are multiple genuine children, the husband is entitled to the same share as each legitimate child. The spouse’s inheritance is deducted from the estate’s free half.
- Each illegitimate child is entitled to 1/2 the legitime of a legal child, which is deducted from the estate’s free part.If the total of all illegitimate offspring exceeds the estate’s remaining free portion, the free portion is distributed evenly among them.
- In the absence of legitimate children and descendants, the deceased’s parents or ascendants are entitled to 1/2 percent of the estate.
After these legitimes, whatever remains of the free share of the inheritance may be disposed of in accordance with the deceased’s will.
- If the dead did not leave a will (intestate proceeding), the estate will be split equally among the surviving spouse and legitimate children. If there are illegitimate children, they are entitled to a portion equal to one-twelfth of the share of legal children. However, the legitimate children’s and spouse’s legal obligations must be met.
What if there is only one Heir?
If there is only one heir, instead of an extrajudicial settlement, the only heir should execute a “affidavit or self-adjudication.” These public instruments will have to be published. At the same time, the applicable taxes and fees must be paid within the period specified by law. Following that, the heirs must obtain the required certifications for the properties to be transferred to their names.
How about the legally adopted children?
Yes. All legal links between the biological parents and the adoptee shall dissolve and be vested in the adopter following the completion of the actions required by adoption legislation and once adoption is decreed by the court. The adoptee will thereafter be considered the adopters’ legitimate child for all intents and purposes, with all of the rights and obligations of a legitimate child, including the right to bear the surnames of the father and mother. To that aim, the adoptee is entitled to love, guidance, and support in accordance with the family’s resources.
Likewise, Both the adopter and the adoptee have reciprocal rights to succession without regard to legitimate filiation. The adoptee has the right to inherit from their adoptive parents and to represent them in the estate of the latter’s ascendants. While the adopter and child acquire reciprocal rights and obligations, adoption does not bestow on the adopted the adopter’s nationality. Citizenship is a benefit, not a right. Adoption is not legally recognized as a means of obtaining citizenship.
Can a foreigner inherit land in the Philippines?
Yes! In the Philippines, a foreigner can inherit land intestate. Under Philippine Inheritance Law, a surviving spouse’s inheritance rights apply to foreigners as well, although only in extremely limited circumstances. There are numerous variations on the issue of a foreign spouse’s inheritance rights. A comprehensive dissertation on all of them would require volumes.
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