(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.)
Q: 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. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.
Q: If my deceased parent did not leave a will, am I still entitled to inherit?
Yes. If no will was left by the deceased, then his heirs shall inherit by operation of law. This is called legal or intestate succession, as opposed to testate or testamentary succession when the deceased left a last will and testament to govern successional rights of the heirs.
Q: Who are the legal or intestate heirs?
1. Legitimate and illegitimate children, and ascendants and descendants in the direct line;
2. Surviving spouse;
3. Other collateral relatives of the deceased up to the fifth civil degree;
4. The State.
Please take note that the existence of heirs in the direct descending line excludes the heirs in the ascending line. Thus, parents can only inherit from their deceased children if said deceased has no children of his own. Moreover, the existence of heirs in the direct descending or ascending line excludes the heirs in the collateral line from inheriting. Therefore, if the deceased still has parents when he died, his brothers and sisters shall be excluded from inheriting from him.
Note however that the existence of ascendants, descendants, or collateral relatives does not exclude the deceased’s legitimate spouse from succession. Thus, the husband or wife may inherit from the deceased spouse even if the deceased has surviving children, parents, or siblings.
With respect to heirs in the direct ascending or descending line, the relative nearest from the deceased shall exclude the others in that line. Therefore, the existence of parents shall exclude the deceased’s grandparents from inheriting.
Q: What are the instances when legal or intestate succession takes place?
(1) If 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;
(3) If the condition attached to the institution of heir does not happen or is not fulfilled;
(4) If the heir dies before the testator, or repudiates the inheritance, there being no substitute;
(5) When the heir instituted is incapable of succeeding.
Q: Who are the 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.
Like in intestate succession, the existence of heirs in the descending line excludes the heirs in the ascending line. Also, the existence of ascendants or descendants does not exclude the deceased’s legitimate spouse from succession.
Moreover, with respect to heirs in the direct ascending or descending line, the relative nearest from the deceased shall exclude the others in that line.
Q: Can a person make a will and give everything he owns to just one person?
No. A portion of the deceased’s estate is reserved by law to be succeeded by the compulsory heirs. The said reserved portion is called “legitime”. Under the law, legitime is that part of the testator’s property which he cannot dispose of precisely because the law has reserved it to the compulsory heirs.
The part of the deceased’s property that he may dispose freely through a will is called the “free portion.”
Q: Is there a way for me to disinherit one of my compulsory heirs?
Yes. A compulsory heir may be disinherited, provided that the following requirements are complied with:
(1) The disinheritance must be made expressly in a will;
(2) The heir disinherited must be designated in such a manner that there can be no doubt as to his identity;
(3) The disinheritance must be total and unconditional;
(4) The disinheritance must only be for causes designated by law, and the cause must be stated in the will itself;
(5) The cause for disinheritance must be proved by the other heirs if the one who was disinherited denies it.
Q: What are the grounds for disinheritance?
(1) Conviction by final judgment of an attempt against the life of the testator, or his spouse, ascendants or descendants;
(2) Accusing the testator of a crime for which the law prescribes the penalty of imprisonment for at least 6 years, if the accusation has been found groundless or false;
(3) When the heir, by fraud, violence, intimidation or undue influence, causes the testator to make a will, or change one already made;
(4) Unjustifiable refusal to give support;
(5) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;
(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;
(9) Parents who have abandoned their children, or induced their daughters to live a corrupt or immoral life, or attempted against their virtues;
(10) Convicted of adultery or concubinage with the spouse of the testator;
(11) Loss of parental authority;
(12) Attempt by one of the parents against the life of the other, unless there has been reconciliation between them.
Q: What is the difference between an heir, a devisee, and a legatee?
An heir is a person called to succession, either by will or by operation of law, and succeeds the whole or a fraction of the estate left by the decedent.
On the other hand, a devisee (one who was given real property through a will) or legatee (one who was given personal property through a will) succeeds the testator only with respect to the specific thing bequeathed to him. Moreover, unlike an heir who may succeed whether testate or intestate, devisees and legatees may succeed only through testamentary succession.
Q: What are the different kinds of wills?
There are two kinds of wills: the notarial will, and the holographic will, which are subject to different formalities as required by law.
Q: What are the formalities of a notarial will?
As for a notarial will, it must be signed at the end by the testator (referring to the deceased who left a last will and testament) himself. If somebody else would sign for the testator, it must be done within the testator’s presence, and by his express direction, and attested and subscribed by three or more credible witnesses also in the presence of the testator and of one another.
The testator or the person requested by him to sign for him and the instrumental witnesses of the will, shall also sign each and every page thereof on the left margin (except the last page), and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
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.
All such formalities must be complied with, and non-compliance will render the will null and void. Compliance with such formalities is designed to guard against bad faith and fraud, to avoid substitution of wills, and to guaranty their truth and authenticity.
Q: What are the formalities of a holographic will?
A holographic will is one which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.
In holographic wills, 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. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.
In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.
Q: What is probate?
Probate refers to the proceeding in court for the purpose of establishing the validity of the will by determining whether it has complied with the required formalities. Before succession through a will is given effect, probate of wills is mandatory because under the law, no will shall pass either real or personal property unless its validity is proved before the court, and allowed by the court.
Please take note that in probate proceedings, the matter to be resolved is the validity of a will based on compliance with its formalities. Probate proceedings are not concerned on the contents of the will.
Aside from non-compliance with formalities, other grounds for disallowance of will, which may also be taken up in a probate proceeding, are as follows:
(1) If the testator was insane, or otherwise mentally incapable of making a will at the time such will was made;
(2) If the will was executed by the testator through force or when under duress, influence of fear, or threats;
(3) If the will was procured by undue and improper pressure and influence;
(4) If the testator signed the will because of fraud;
(5) If, at the time when the will was signed by the testator, the testator acted by mistake, and did not intend that the written instrument he signed would be made a will;
(6) If the testator was below 18 years old at the time he made the will.
Q: I already made a will, may I have it revoked in case I change my mind?
Yes. A will may be revoked at any time before the testaor’s death. In fact, the law does not allow the testator to waive his right to revoke his will.
A will may be revoked by executing another will revoking a previous one, or by physically destroying the will. In case of physical destruction of the will, the intention to revoke must be present and was not done by mere accident. Also, in order to be revoked, the will must be destroyed by the testator himself, or by any other person in the presence of the testator and upon the testator’s express direction. If the will is destroyed without the testator’s express direction, said will may still be established, and the estate may be distributed accordingly, if its contents and due execution, and the fact of its unauthorized destruction are established and proven before the court.
Q: If I decide not to succeed, am I allowed to renounce my inheritance?
Yes. Whether to accept or to renounce your inheritance is an act that is free and voluntary on your part, and the effects of acceptance or repudiation retroacts to the moment of death of the decedent.
Take note though, that no person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. One cannot accept or repudiate the inheritance in advance for the simple reason that if the person is still alive, there is nothing to accept yet, or there is nothing to renounce yet.
Q: How is acceptance of inheritance made?
Acceptance may be express or implied.
Acceptance is implied in the following instances:
1. If the heir sells, donates, or assigned his right to another;
2. If the heir renounces the inheritance for the benefit of one or more of his co-heirs;
3. If the heir renounces the inheritance for a price in favor of all his co-heirs indiscriminately;
4. In case of judicial settlement of estate, if within 30 days after the court issues an order for the distribution, the heir failed to signify to the court whether he accepts or repudiates the inheritance.
Q: How do I renouce my inheritance?
In case of renunciation of inheritance, the law requires that such repudiation shall be made in writing, which must be in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings.
All rights reserved.