WHO ARE CONSIDERED HEIRS UNDER THE LAW (PART II)

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Published — June 1, 2022

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

Read Part I here: WHO ARE CONSIDERED HEIRS UNDER THE LAW? (Part 1)

• A person (testator) may donate his property to strangers

• A testator may give his child anything in excess to what is mandated by law

• A voluntary heir inherits only by way of will

Last week, we have posted the first part of this article (Who are considered Heirs under the law?). In the first article, we have learned that a person who may inherit from a decedent is called either a compulsory heir or a voluntary heir.

To refresh our minds, a dead person is called decedent. If the decedent has executed a notarial or a holographic will, he is called testator. In other words, a testator is a person who makes a will in which he could formally and expressly institute his heirs. An heir is a person who can inherit from a decedent.

An heir is either compulsory or voluntary. Take note that in the first part of this article, it was mentioned that a compulsory heir cannot be omitted or excluded from the estate. A compulsory heir has an absolute right. Is it the same case with voluntary heir?

The law says:

No.

A voluntary heir is an heir other than a compulsory heir. There is a voluntary heir because the testator said so. There is a voluntary heir because there is a will. In other words, the existence of a voluntary heir depends on the existence of a will. The existence of a voluntary heir solely depends on the wish of the person making a will. However, the act of the testator in instituting a voluntary heir must be in accord with the rights of compulsory heirs.

Please bear in mind that with or without a will, a compulsory heir cannot be deprived of their legitime. Again, legitime is that part of the decedent’s estate which he cannot dispose of because the law has reserved it for his compulsory heirs.

In simpler terms, without a will, there is no voluntary heir to speak of.  When there is a will instituting a voluntary heir, still, the legitime of a compulsory heir must be respected. The legitime of a compulsory heir cannot give way to grant the will of a testator with regard to the institution of a voluntary heir.

By the way, a voluntary heir could be a stranger, meaning, someone who may not be related by blood to the testator. A voluntary heir could be a testator’s friend, cousin, workmate, or someone he just met somewhere down the road.

Let us take a hypothetical case to illustrate the concept of compulsory and voluntary heir.

          Let us call the decedent by the name of Pop.

Pop died leaving a surviving spouse (let us call her Kerra) and a child (Stephen). Pop was also survived by his best friend by the name of Andre. If Pop died leaving a will, his compulsory heirs are Kerra, his surviving spouse and Stephen, his surviving child. If in his will, he instituted Kerra, Stephen, and Andre as his heirs, Andre is a voluntary heir.

If Pop died without leaving a will, Kerra and Stephen will inherit by operation of law. This is because both of them are compulsory heirs of Pop. Will Andre inherit from Pop? No.

Now, there are two (2) kinds of voluntary heirs, what are they?

The law says:

Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. In the example above, if Pop, by will, gave Andre a lot, his is called devisee. If a car was given to him, he is called legatee.

Is there an instance where a compulsory heir may also be called a voluntary heir?

Yes. This is where a compulsory heir receives from a testator more than his legitime.

Let us take another illustration with the same characters.

Pop, a widower, died leaving a surviving child by the name of Stephen. Pop was also survived by his best friend Andre. Pop died living a will. In his will, he instituted Stephen to inherit the three-fourths (3/4) of his entire estate. One-fourth of his estate goes to Andre.

In this case, there are two voluntary heirs. Andre and Stephen. Under the law, when the lone compulsory heir is a child (legitimate or illegitimate), he is entitled to his legitime which is half of the estate of the testator should the latter executes a will.

In our illustration, Pop gave Stephen three-fourths (3/4) of his entire estate. Stephen, by will, got an additional Fifty percent (50%) of his legitime. As to his legitime of one-half (1/2) of the estate, he is a compulsory heir. As to the additional one-fourth (1/4) which he got from the testator by way of will, he is a voluntary heir. This is because Pop is not mandated by law to give anything in excess of Stephen’s legitime.

May an heir be substituted? An article regarding the matter will be posted in a few days.

 

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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