The good news is that there is a perfectly legal alternative, a beastie called the Holographic Will, similar to what in Europe is called a Living Will, a will made while the will maker is still in good health and mentally alert.
The Civil Code of the Philippines -- I have a copy in front of me now -- says "A holographic will is one entirely written, dated, and signed by the hand of the testator." Simplicity itself. Juan writes out a will in his usual handwriting, dates, signs and seals and either tucks it away or leaves it in the hands of a trusted individual.
The Civil Code goes on to point out the advantages of a holographic will -- easier to make, easy to revise, easier to keep secret. That middle clause is important -- a holographic will, by its author's revisions, keeps up with the will maker's situation and doesn't entail trotting down to a lawyer's office to make alterations which, naturally, will cost another arm and leg.
Don't die intestate -- only lawyers profit from squabbling relatives. Make a holographic will. I am. Read the complete original article here http://www2.sunstar.com.ph/davao/covington-last-will-and-testamentd
Thursday, October 8, 2009
Sample Wills and Last Testament
Sample wills to make your own will
I. I desire that should I die, it is my wish to be buried according to the rites of the Roman Catholic Church and interred at our family mausoleum in Manila;
II. To my beloved wife _____name of wife_____, I give and bequeath the following property to wit:_________________________ ;
III. To my esteemed children, ________________________ and ______________________I give and bequeath the following properties to wit:_______________________________ in equal shares;
V. To my loyal assistant, __________________________I give and bequeath the following properties to wit:_______________________________.
IN WITNESS WHEREOF, I have hereunto affixed my signature this ________ day of _____________, 2008, in ________________, Philippines.
_______________________________________
(Signature of Testator over Printed Name)
http://legal-forms.philsite.net/will-testament.htm
HERE ARE SOME OTHER SAMPLES BUT REMEMBER NO WITNESSES NECESSARY AND YOU MUST DO IT IN YOUR OWN HANDWRITING
http://answers.yahoo.com/question/index?qid=20071130092618AAALEeC
http://www.willarchives.com/
LAST HOLOGRAPHIC WILL AND TESTAMENT
KNOW ALL MEN BY THESE PRESENTS:
I, ____name of testator_____ , Filipino citizen, of legal age, single/married to ___insert name of spouse if any___, born on the ____th of ______________ , 19__ , a resident of __insert address__ , being of sound and disposing mind and memory, and not acting under undue influence or intimidation from anyone, do hereby declare and proclaim this instrument to be my Last Will and Testament, in English, the language which I am well conversant. And I hereby declare that:
I. I desire that should I die, it is my wish to be buried according to the rites of the Roman Catholic Church and interred at our family mausoleum in Manila;
II. To my beloved wife _____name of wife_____, I give and bequeath the following property to wit:_________________________ ;
III. To my esteemed children, ________________________ and ______________________I give and bequeath the following properties to wit:_______________________________ in equal shares;
IV. To my dear brother, __________________________I give and bequeath the following properties to wit:_______________________________.
V. To my loyal assistant, __________________________I give and bequeath the following properties to wit:_______________________________.
VI. I hereby designate ____name of executor_____ the executor and administrator of this Last Will and Testament, and in his incapacity, I name and designate _____________________ as his substitute.
VII. I hereby direct that the executor and administrator of this Last Will and Testament or his substitute need not present any bond;
VIII. I hereby revoke, set aside and annul any and all of my other will or testamentary dispositions that I have made, executed, signed or published preceding this Last Will and Testament.
VII. I hereby direct that the executor and administrator of this Last Will and Testament or his substitute need not present any bond;
VIII. I hereby revoke, set aside and annul any and all of my other will or testamentary dispositions that I have made, executed, signed or published preceding this Last Will and Testament.
IN WITNESS WHEREOF, I have hereunto affixed my signature this ________ day of _____________, 2008, in ________________, Philippines.
_______________________________________
(Signature of Testator over Printed Name)
http://legal-forms.philsite.net/will-testament.htm
HERE ARE SOME OTHER SAMPLES BUT REMEMBER NO WITNESSES NECESSARY AND YOU MUST DO IT IN YOUR OWN HANDWRITING
http://answers.yahoo.com/question/index?qid=20071130092618AAALEeC
http://www.willarchives.com/
Will without the legal formalitiesM PHILIPPINES DO IT YOURSELF FREE
A person in contemplation of death may execute his own will, without need of lawyer’s assistance and the other formalities of a testament provided it is entirely written, dated and signed by the hand of the testator himself [Art. 810]. Under the Civil Code of the Philippines (R. A. 386 - approved: 18 June 1949), this is known as ‘holographic will’. It is subject to no other form, may be made in or out of the Philippines, and need not be witnessed. http://soriano-ph.com/2008/01/28/will-without-the-legal-formalities/
Holographic will, under Article 810 of the New Civil Code Philippines
...holographic will, under Article 810 of the New Civil Code:
This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of wills is that they should be in writing and must have been executed in a language or dialect known to the testator (Art. 804, Civil Code).
However, before a person may execute a will, he or she must possess the following:
To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. 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. (Article 799, New Civil Code) http://www.abogadomo.com/law-professor/law-professor-archives/making-a-last-will-and-testament
http://www.thetrustguru.com/lawdsuccess.htm
“A person may execute a holographic will 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.”
However, before a person may execute a will, he or she must possess the following:
a. That the testator must must be at least eighteen years of age, and;
b. That he must be of sound mind.(Article 797 and 798, New Civil Code)
b. That he must be of sound mind.(Article 797 and 798, New Civil Code)
http://www.thetrustguru.com/lawdsuccess.htm
If a document is not entitled “last will and testament,” could it still be treated as a will?
Yes. In the same case of Dy Yieng Sangio vs. Reyes, the document is entitled “Kasulatan ng Pag-Aalis ng Mana.” The document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of the testator himself. An intent to dispose mortis causa (upon death) can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator in favor of those who would succeed in the disinherited heir.
http://jlp-law.com/blog/last-will-and-testament-basic-discussion/
http://jlp-law.com/blog/last-will-and-testament-basic-discussion/
LAWYER DOESN'T NEED TO SIGN THE HOLOGRAPHIC WILL
I'd Like to ask if I am single and dont want to give or share my properties to my siblings and their children because they dont need it. I'd like to give my whole estate to other people, what will i do so that my forced heirs will not go after it.
Hi jayrsu,
Our law on succession merely requires that if one dies without a will, his properties will descend to his compulsory heirs, or in their absence, to the legal heirs. But the compulsory heirs, as distinguished from legal heirs, cannot be deprived of their legitimates (share in the estate of deceased) as the law provides.
Thus, since you do not have a descendant or ascendant or been married to anyone, which the law cconsiders as compulsory heirs, then you have every right to bequeth your entire estate to anyone. But if you leave without a will, the court may give it to your legal heirs - brother, sister, or their children. regards.
ANOTHER POINT, THE LAWYER DOESN'T NEED TO SIGN THE LAST WILL AND TESTAMENT. IT COULD BE DONE THRU A HOLOGRAPHIC WILL WHICH REQUIRES THE TESTATOR TO WRITE THE TESTAMENT IN HIS OWN HANDWRITING WITHOUT NEED FOR NOTARY.
THE OTHER FORM OF WILL REQUIRES AT LEAST 2 WITNESSES OF LEGAL AGE AND PROPER NOTARIZATION. ALSO, IF YOU WANT TO AVOID ARGUMENTS AFTER YOUR DEATH BETWEEN THE HEIRS AND LEGATEES, YOU MAY OPT TO FILE BEFORE THE COURT A CASE TO RULE ON THE AUTHENTICITIY OF YOUR WILL EVEN DURING YOUR LIFETIME. IT WILL TAKE EFFECT NAMAN AFTER THE DEATH OF THE TESTATOR SO NO NEED TO WORRY. THE PROCESS IS TO AVOID FURTHER QUESTION AS TO THE FREE WILL OF THE TESTATOR AND AS TO HIS SIGNATURE.
http://forums.gov.ph/thread.asp?rootID=124169&catID=23
Hi jayrsu,
Our law on succession merely requires that if one dies without a will, his properties will descend to his compulsory heirs, or in their absence, to the legal heirs. But the compulsory heirs, as distinguished from legal heirs, cannot be deprived of their legitimates (share in the estate of deceased) as the law provides.
Thus, since you do not have a descendant or ascendant or been married to anyone, which the law cconsiders as compulsory heirs, then you have every right to bequeth your entire estate to anyone. But if you leave without a will, the court may give it to your legal heirs - brother, sister, or their children. regards.
ANOTHER POINT, THE LAWYER DOESN'T NEED TO SIGN THE LAST WILL AND TESTAMENT. IT COULD BE DONE THRU A HOLOGRAPHIC WILL WHICH REQUIRES THE TESTATOR TO WRITE THE TESTAMENT IN HIS OWN HANDWRITING WITHOUT NEED FOR NOTARY.
THE OTHER FORM OF WILL REQUIRES AT LEAST 2 WITNESSES OF LEGAL AGE AND PROPER NOTARIZATION. ALSO, IF YOU WANT TO AVOID ARGUMENTS AFTER YOUR DEATH BETWEEN THE HEIRS AND LEGATEES, YOU MAY OPT TO FILE BEFORE THE COURT A CASE TO RULE ON THE AUTHENTICITIY OF YOUR WILL EVEN DURING YOUR LIFETIME. IT WILL TAKE EFFECT NAMAN AFTER THE DEATH OF THE TESTATOR SO NO NEED TO WORRY. THE PROCESS IS TO AVOID FURTHER QUESTION AS TO THE FREE WILL OF THE TESTATOR AND AS TO HIS SIGNATURE.
http://forums.gov.ph/thread.asp?rootID=124169&catID=23
Court case confirms holographic will
PHILIPPINE JURISPRUDENCE - FULL TEXT
The Lawphil Project - Arellano Law Foundation
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA vs. CESARIO SINGSON
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that http://www.lawphil.net/judjuris/juri1960/aug1960/gr_l-14003_1960.html
The Lawphil Project - Arellano Law Foundation
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA vs. CESARIO SINGSON
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that http://www.lawphil.net/judjuris/juri1960/aug1960/gr_l-14003_1960.html
Wednesday, October 7, 2009
Philippine INHERITANCE LAW
INHERITANCE LAW
Thanks to Platon Martinez Flores San Pedro LeaƱo Law Offices
What inheritance laws apply in Philippines?
Inheritance tax and law
The Global Property Guide looks at inheritance from two angles: taxation, and what inheritance laws apply to foreigners leaving property in Philippines: what restrictions there are and whether making a will is advisable.
INHERITANCE TAX
How high are inheritance taxes in Philippines?
ESTATE TAX
Non-resident foreigners pay estate tax only on property located in the Philippines. The taxable inheritance is arrived at after deducting all expenses, losses, debts, and taxes related to the property (all proportionate to the ratio of the Philippine gross estate to his total estate) as well as the surviving spouse’s net share. Estate tax is levied at progressive rates.
ESTATE TAX
TAX BASE, PHP (US$)TAX RATE
Up to 200,000 (US$4,469)nil
200,000 - 500,000 (US$11,172)5% on band over US$4,469
500,000 - 2 million (US$44,687)8% on band over US$11,172
2 million - 5 million (US$111,717)11% on band over US$44,687
5 million - P10 million (US$223,434)15% on band over US$111,717
Over 10 million (US$223,434)20% on band over US$223,434
Source: Global Property Guide
Citizens and Resident Foreigners
Citizens and resident foreigners are allowed the following deductions, aside from the expenses and taxes related to the property as well as the surviving spouse’s share, before arriving at the taxable estate:
PHP1 Million (US$22,343) standard deduction,
PHP1 Million (US$22,343) for the family home,
PHP200,000 (US$4,469) for funeral expenses, and
PHP500,000 (US$11,172) for medical expenses during one whole year before the testator’s death.
What is “probate”?
“Probate” is a special proceeding to establish the validity of a will. Probate is mandatory, which means that no will passes either real or personal property unless it is proved and allowed in a proper court. Courts in probate proceedings, as a rule, are limited to pass only upon the extrinsic validity of the will sought to be probated, but the courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will, under exceptional circumstances.
A will may be probated during the lifetime of the testator. This way, the testator could himself/herself affirm the validity of the will.
The law of the foreigner’s nationality governs inheritance in the Philippines.
Philippine inheritance law is governed by the Civil Code of the Philippines, with the Rules of Court completing the procedural framework.
The general principle in the Philippines is that substantive issues of inheritance, such as the order of succession, amounts of successional rights, validity of testamentary dispositions, capacity to inherit, absence of a will, compulsory heirs, and reserved and free portions are primarily assessed according to the national laws (or, in certain cases, domiciliary laws) of deceased foreigners. The national or domiciliary laws of the deceased foreigner apply regardless of the nature or location of the property in question.
It is possible that the inheritance issues of some foreigners who own property in the Philippines might become subject to renvoi (i.e. the issues are referred back to the Philippines). Situations in which renvoi may be anticipated include:
If the property in question is located in the Philippines, and the foreigner’s national law states that the applicable legislation for inheritance issues is the law of the country where the property is located (lex situs).
If the foreigner’s national law states that the applicable legislation is that of the foreigner’s domicile, and the domicile of the foreigner, as defined by his/her national law, is the Philippines.
If the foreigner’s national or domiciliary laws refer inheritance issues back to the Philippines, even though the Philippines is not the foreigner’s domicile or country of residence.
In the above cases, the Philippines legal system, as ruled by the Supreme Court, has no alternative but to accept the renvoi, and apply the Philippines Civil Code, thereby avoiding conflicts with the national or domiciliary laws of the deceased foreigner.
The court dealing with inheritance issues depends on the value of the estate.
If the gross value exceeds Php200,000 (about US$4,000) or Php400,000 (about US$8,000) in Metro Manila, then the Regional Trial Court has exclusive original jurisdiction. If the gross value is less than the above amounts, then the Metropolitan Trial Court, Municipal Trial Court or Municipal Trial Circuit Court has jurisdiction. The Rules of Court (specifically the Rules on Settlement of Estate of Deceased Persons) govern the procedures to be followed.
Alternatively, under the Rules of Court, an estate may be devolved through extrajudicial settlement, by mutual agreement among the heirs. This method requires that the deceased left no will and no debts, and that all the heirs are of legal age (although minors can be represented by judicial or legal representatives). The heirs simply divide the estate among themselves as they see fit, by means of a public instrument, and this document is thereafter filed with the Philippine Register of Deeds. A sole heir may adjudicate to him/herself an entire estate by means of an affidavit filed in the Philippine Register of Deeds.
Depending on the size of the estate, the intricacy of the issues, and the parties involved, court proceedings for the settlement of estates in Philippines can run for a minimum period of six months to a maximum of several years.
Philippine law stipulates a reserved portion for compulsory heirs
Certain parts of the estate of a deceased Filipino citizen cannot be freely disposed of because Philippines law reserves them for the “compulsory heirs”. The same reservation does not necessarily apply to foreigners who are governed by their national inheritance laws. However if the Philippines court accepts a renvoi, then the reserved portions, “reserves” or “legitimes” established in Philippine law become applicable to foreigners.
The “compulsory heirs” are classified as:
Primary - legitimate children and/or descendants
Secondary - legitimate parents and/or ascendants; illegitimate parents
Concurring - surviving spouse; illegitimate children and/or descendants
“Primary compulsory heirs” are preferred over secondary heirs, who receive only in default of the primary. “Concurring compulsory heirs” generally succeed as compulsory heirs, together with primary or secondary heirs.
Depending on the surviving heirs called to the succession, the law reserves at least one half of the deceased’s hereditary estate for distribution to the heirs. The hereditary estate is the difference between the assets and the liabilities of the deceased. If a property is conjugally-owned by spouses, or co-owned by several parties, then only that portion of the property belonging to the deceased forms part of the hereditary estate.
The Philippine Civil Code regarding “reserves” or “legitimes” provides that
One legitimate child is entitled to ½ of the hereditary estate. Two or more legitimate children are entitled to distribute ½ of the hereditary estate equally among themselves.
The surviving spouse is entitled to ¼ of the hereditary estate if there is only one legitimate child. With 2 or more legitimate children, the surviving spouse is entitled to a portion equal to the legitime of a legitimate child. The legitime of the surviving spouse is taken from the free portion of the hereditary estate.
The legitime of illegitimate children are taken from the free portion of the hereditary estate, provided that they do not exceed the free portion. The Family Code of the Philippines provides that the legitime of each illegitimate child consists of ½ of that of a legitimate child.
In the absence of legitimate children and descendants, the legitime of legitimate parents or ascendants consists of ½ of the hereditary estate of their children and descendants. The testator may freely dispose of the other half, subject to the rights of illegitimate children and the surviving spouse.
For example, if a decedent is survived by his wife and four legitimate children, ½ of his hereditary estate is reserved equally between the children (1/8 each) whilst the wife takes the same share as one legitimate child i.e. 1/8. This leaves 3/8 of the estate which can be freely disposed of in accordance with his will.
The free portion of a hereditary estate can be freely willed to any person or class of person with the capacity to succeed under the Civil Code, even if that person is already a compulsory heir, with a prescribed legitime.
There may be instances where no free portion is left to distribute. For example, if there is one legitimate child, a surviving spouse and two illegitimate children, the legitimate child gets ½ of the hereditary estate, the surviving spouse gets ¼ and the two legitimate children share equally the remaining ¼ portion, so there is no free portion.
Foreign wills are allowed in the Philippines
The will of a foreigner that is proven and allowed in a foreign country, in accordance with the laws of that country, may be allowed, filed and recorded by the Philippine courts. A copy of the will and the decree of allowance issued by the proper authorities in the foreign country, must be duly authenticated, and filed with a petition for allowance before the Philippine courts. The due execution of the will and the testamentary capacity of the decedent need not be proven again. After hearing, the Philippine court decides whether the will may be allowed in the Philippines.
Foreigners can make a local will
High income or upper middle class Filipinos are most likely to make a will, but those in the low income classes are unlikely to do so. Executing a will requires the heirs to go through the tedious process of probate proceedings, and rules out extrajudicial settlement of the estate. In some instances, as a form of estate planning, families establish “close corporations” or “holding companies” to hold and manage properties of the family to ensure continued development and expansion of family properties without being bogged down by succession or estate issues.
If a foreigner decides to make a notarial will in the Philippines, his/her presence in the Philippines is required. The prerequisite formalities for a notarial will are:
The will must be signed at the end thereof by the testator himself;
It must be attested to by three or more credible witnesses in the presence of the testator and of each other;
Each and every page except the last must be signed on the left margin by the testator and his witnesses in the presence of each other;
Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page;
It must contain an attestation clause (in a specified form) and signed by the witnesses; and,
It must be acknowledged before a notary public by the testator and the witnesses.
In the case of a holographic will, Philippine law only requires that it is entirely handwritten, signed and dated by the maker.
Private land in Philippines cannot be bequeathed to a foreigner.
If a foreign decedent owns private land in the Philippines, then current Philippine law considers as void any provision in the foreigner’s will bequeathing the land to another foreigner. This is due to the Philippine law which limits ownership of private land in the Philippines to the following:
Filipino citizens;
Corporations or associations - at least 60% of the capital must be owned by Filipino citizens;
Natural-born Filipino citizens who have lost their Philippine citizenship, subject to certain limitations;
Non-Filipino citizens, who can inherit land by hereditary or intestate succession (without a will) but not by testamentary succession (with a will).
Although ownership of private land in the Philippines is currently subject to the above nationality restrictions, foreigners are at liberty to buy condominium units, and most condominium projects in the Philippines are structured so that that foreigners can own such units; consequently condominiums may be inherited by foreigners through testamentary or intestate succession.
There is a possibility that foreign ownership restrictions in the Philippines may be removed in the future if the Constitution is changed, which is the controversial plan of the administration of President Gloria Macapagal-Arroyo.
In the absence of a will, Philippine law designates intestate heirs.
The order of hereditary or intestate succession, if the deceased was a legitimate child, is as follows:
Legitimate children or descendants;
Legitimate parents or ascendants;
Illegitimate children or descendants;
Surviving spouse;
Brothers and sisters, nephews and nieces;
Other collateral relatives within the fifth degree; and,
The State.
The order of hereditary or intestate succession, if the deceased was an illegitimate child, is as follows:
Legitimate children or descendants;
Illegitimate children or descendants;
Illegitimate parents (other ascendants are excluded);
Surviving spouse;
Brothers and sisters, nephews and nieces; and,
The State.
The surviving spouse and the illegitimate children or descendants of the deceased are considered as “concurring compulsory heirs” and they succeed, as a general rule, together with the primary or secondary heirs.
Gifts during the lifetime of the owner are advances from the inheritance
Philippine law considers all property given during the lifetime of the deceased as advances from his/her estate. Thus, any property which the deceased gave or donated to other persons before death must be returned to his/her estate. This is known as collation. The actual gifts are not brought to collation, but only their value at the time they were given.
The purpose of collation is to estimate the value of the legitime of compulsory heirs and the amount of the free portion. Philippine rules of evidence apply, so that testimonial or documentary proof of the value of each gift must be presented to the court. There is no limit, in time or size, to the gifts considered. Even if the gifts were made before the compulsory heirs were born, they are collated. However, in practice, it is difficult to prove the value of small gifts, and gifts made a long time ago may be forgotten. Normally, collation only includes real estate (i.e. land, buildings, condominium units, apartments) and valuable personal possessions (e.g. jewelry, cars, stocks, shares, club memberships) for which documentary proof or evidence can be presented to the court.
The values of gifts to compulsory heirs are chargeable against (i.e. deducted from) their legitime, except if the donor has expressed that “collation shall not take place” which means that the values of the gifts are deducted from the free portion. Gifts to persons who are not compulsory heirs are always chargeable against the free portion. If the total value of the gifts exceeds the free portion, then they are considered inofficious, in which case, the excess must be returned to the compulsory heirs. The law contemplates the return of property of the same nature, class and quality, as far as possible.
Ownership of real estate in the Philippines is determined by the Torrens title.
One of the cardinal principles in the Philippines is the indefeasibility of the Torrens Title to determine the ownership of real property. The registered owner indicated on the Torrens Title, and the incidents annotated therein, generally defeat any other claim, or claimant, not so registered. The Torrens Title system is quite reliable and has been used effectively to defeat the claims of some unscrupulous Filipinos who attempt to acquire other people’s real estate in the Philippines by means of spurious or fake titles. A foreigner who purchases or inherits real property in the Philippines is therefore strongly advised to avoid such problems by procuring the services of a local lawyer to ensure that his/her name is registered as the legal owner on the Torrens Title.
from http://www.globalpropertyguide.com/Asia/Philippines/Inheritance
Thanks to Platon Martinez Flores San Pedro LeaƱo Law Offices
What inheritance laws apply in Philippines?
Inheritance tax and law
The Global Property Guide looks at inheritance from two angles: taxation, and what inheritance laws apply to foreigners leaving property in Philippines: what restrictions there are and whether making a will is advisable.
INHERITANCE TAX
How high are inheritance taxes in Philippines?
ESTATE TAX
Non-resident foreigners pay estate tax only on property located in the Philippines. The taxable inheritance is arrived at after deducting all expenses, losses, debts, and taxes related to the property (all proportionate to the ratio of the Philippine gross estate to his total estate) as well as the surviving spouse’s net share. Estate tax is levied at progressive rates.
ESTATE TAX
TAX BASE, PHP (US$)TAX RATE
Up to 200,000 (US$4,469)nil
200,000 - 500,000 (US$11,172)5% on band over US$4,469
500,000 - 2 million (US$44,687)8% on band over US$11,172
2 million - 5 million (US$111,717)11% on band over US$44,687
5 million - P10 million (US$223,434)15% on band over US$111,717
Over 10 million (US$223,434)20% on band over US$223,434
Source: Global Property Guide
Citizens and Resident Foreigners
Citizens and resident foreigners are allowed the following deductions, aside from the expenses and taxes related to the property as well as the surviving spouse’s share, before arriving at the taxable estate:
PHP1 Million (US$22,343) standard deduction,
PHP1 Million (US$22,343) for the family home,
PHP200,000 (US$4,469) for funeral expenses, and
PHP500,000 (US$11,172) for medical expenses during one whole year before the testator’s death.
What is “probate”?
“Probate” is a special proceeding to establish the validity of a will. Probate is mandatory, which means that no will passes either real or personal property unless it is proved and allowed in a proper court. Courts in probate proceedings, as a rule, are limited to pass only upon the extrinsic validity of the will sought to be probated, but the courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will, under exceptional circumstances.
A will may be probated during the lifetime of the testator. This way, the testator could himself/herself affirm the validity of the will.
The law of the foreigner’s nationality governs inheritance in the Philippines.
Philippine inheritance law is governed by the Civil Code of the Philippines, with the Rules of Court completing the procedural framework.
The general principle in the Philippines is that substantive issues of inheritance, such as the order of succession, amounts of successional rights, validity of testamentary dispositions, capacity to inherit, absence of a will, compulsory heirs, and reserved and free portions are primarily assessed according to the national laws (or, in certain cases, domiciliary laws) of deceased foreigners. The national or domiciliary laws of the deceased foreigner apply regardless of the nature or location of the property in question.
It is possible that the inheritance issues of some foreigners who own property in the Philippines might become subject to renvoi (i.e. the issues are referred back to the Philippines). Situations in which renvoi may be anticipated include:
If the property in question is located in the Philippines, and the foreigner’s national law states that the applicable legislation for inheritance issues is the law of the country where the property is located (lex situs).
If the foreigner’s national law states that the applicable legislation is that of the foreigner’s domicile, and the domicile of the foreigner, as defined by his/her national law, is the Philippines.
If the foreigner’s national or domiciliary laws refer inheritance issues back to the Philippines, even though the Philippines is not the foreigner’s domicile or country of residence.
In the above cases, the Philippines legal system, as ruled by the Supreme Court, has no alternative but to accept the renvoi, and apply the Philippines Civil Code, thereby avoiding conflicts with the national or domiciliary laws of the deceased foreigner.
The court dealing with inheritance issues depends on the value of the estate.
If the gross value exceeds Php200,000 (about US$4,000) or Php400,000 (about US$8,000) in Metro Manila, then the Regional Trial Court has exclusive original jurisdiction. If the gross value is less than the above amounts, then the Metropolitan Trial Court, Municipal Trial Court or Municipal Trial Circuit Court has jurisdiction. The Rules of Court (specifically the Rules on Settlement of Estate of Deceased Persons) govern the procedures to be followed.
Alternatively, under the Rules of Court, an estate may be devolved through extrajudicial settlement, by mutual agreement among the heirs. This method requires that the deceased left no will and no debts, and that all the heirs are of legal age (although minors can be represented by judicial or legal representatives). The heirs simply divide the estate among themselves as they see fit, by means of a public instrument, and this document is thereafter filed with the Philippine Register of Deeds. A sole heir may adjudicate to him/herself an entire estate by means of an affidavit filed in the Philippine Register of Deeds.
Depending on the size of the estate, the intricacy of the issues, and the parties involved, court proceedings for the settlement of estates in Philippines can run for a minimum period of six months to a maximum of several years.
Philippine law stipulates a reserved portion for compulsory heirs
Certain parts of the estate of a deceased Filipino citizen cannot be freely disposed of because Philippines law reserves them for the “compulsory heirs”. The same reservation does not necessarily apply to foreigners who are governed by their national inheritance laws. However if the Philippines court accepts a renvoi, then the reserved portions, “reserves” or “legitimes” established in Philippine law become applicable to foreigners.
The “compulsory heirs” are classified as:
Primary - legitimate children and/or descendants
Secondary - legitimate parents and/or ascendants; illegitimate parents
Concurring - surviving spouse; illegitimate children and/or descendants
“Primary compulsory heirs” are preferred over secondary heirs, who receive only in default of the primary. “Concurring compulsory heirs” generally succeed as compulsory heirs, together with primary or secondary heirs.
Depending on the surviving heirs called to the succession, the law reserves at least one half of the deceased’s hereditary estate for distribution to the heirs. The hereditary estate is the difference between the assets and the liabilities of the deceased. If a property is conjugally-owned by spouses, or co-owned by several parties, then only that portion of the property belonging to the deceased forms part of the hereditary estate.
The Philippine Civil Code regarding “reserves” or “legitimes” provides that
One legitimate child is entitled to ½ of the hereditary estate. Two or more legitimate children are entitled to distribute ½ of the hereditary estate equally among themselves.
The surviving spouse is entitled to ¼ of the hereditary estate if there is only one legitimate child. With 2 or more legitimate children, the surviving spouse is entitled to a portion equal to the legitime of a legitimate child. The legitime of the surviving spouse is taken from the free portion of the hereditary estate.
The legitime of illegitimate children are taken from the free portion of the hereditary estate, provided that they do not exceed the free portion. The Family Code of the Philippines provides that the legitime of each illegitimate child consists of ½ of that of a legitimate child.
In the absence of legitimate children and descendants, the legitime of legitimate parents or ascendants consists of ½ of the hereditary estate of their children and descendants. The testator may freely dispose of the other half, subject to the rights of illegitimate children and the surviving spouse.
For example, if a decedent is survived by his wife and four legitimate children, ½ of his hereditary estate is reserved equally between the children (1/8 each) whilst the wife takes the same share as one legitimate child i.e. 1/8. This leaves 3/8 of the estate which can be freely disposed of in accordance with his will.
The free portion of a hereditary estate can be freely willed to any person or class of person with the capacity to succeed under the Civil Code, even if that person is already a compulsory heir, with a prescribed legitime.
There may be instances where no free portion is left to distribute. For example, if there is one legitimate child, a surviving spouse and two illegitimate children, the legitimate child gets ½ of the hereditary estate, the surviving spouse gets ¼ and the two legitimate children share equally the remaining ¼ portion, so there is no free portion.
Foreign wills are allowed in the Philippines
The will of a foreigner that is proven and allowed in a foreign country, in accordance with the laws of that country, may be allowed, filed and recorded by the Philippine courts. A copy of the will and the decree of allowance issued by the proper authorities in the foreign country, must be duly authenticated, and filed with a petition for allowance before the Philippine courts. The due execution of the will and the testamentary capacity of the decedent need not be proven again. After hearing, the Philippine court decides whether the will may be allowed in the Philippines.
Foreigners can make a local will
High income or upper middle class Filipinos are most likely to make a will, but those in the low income classes are unlikely to do so. Executing a will requires the heirs to go through the tedious process of probate proceedings, and rules out extrajudicial settlement of the estate. In some instances, as a form of estate planning, families establish “close corporations” or “holding companies” to hold and manage properties of the family to ensure continued development and expansion of family properties without being bogged down by succession or estate issues.
If a foreigner decides to make a notarial will in the Philippines, his/her presence in the Philippines is required. The prerequisite formalities for a notarial will are:
The will must be signed at the end thereof by the testator himself;
It must be attested to by three or more credible witnesses in the presence of the testator and of each other;
Each and every page except the last must be signed on the left margin by the testator and his witnesses in the presence of each other;
Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page;
It must contain an attestation clause (in a specified form) and signed by the witnesses; and,
It must be acknowledged before a notary public by the testator and the witnesses.
In the case of a holographic will, Philippine law only requires that it is entirely handwritten, signed and dated by the maker.
Private land in Philippines cannot be bequeathed to a foreigner.
If a foreign decedent owns private land in the Philippines, then current Philippine law considers as void any provision in the foreigner’s will bequeathing the land to another foreigner. This is due to the Philippine law which limits ownership of private land in the Philippines to the following:
Filipino citizens;
Corporations or associations - at least 60% of the capital must be owned by Filipino citizens;
Natural-born Filipino citizens who have lost their Philippine citizenship, subject to certain limitations;
Non-Filipino citizens, who can inherit land by hereditary or intestate succession (without a will) but not by testamentary succession (with a will).
Although ownership of private land in the Philippines is currently subject to the above nationality restrictions, foreigners are at liberty to buy condominium units, and most condominium projects in the Philippines are structured so that that foreigners can own such units; consequently condominiums may be inherited by foreigners through testamentary or intestate succession.
There is a possibility that foreign ownership restrictions in the Philippines may be removed in the future if the Constitution is changed, which is the controversial plan of the administration of President Gloria Macapagal-Arroyo.
In the absence of a will, Philippine law designates intestate heirs.
The order of hereditary or intestate succession, if the deceased was a legitimate child, is as follows:
Legitimate children or descendants;
Legitimate parents or ascendants;
Illegitimate children or descendants;
Surviving spouse;
Brothers and sisters, nephews and nieces;
Other collateral relatives within the fifth degree; and,
The State.
The order of hereditary or intestate succession, if the deceased was an illegitimate child, is as follows:
Legitimate children or descendants;
Illegitimate children or descendants;
Illegitimate parents (other ascendants are excluded);
Surviving spouse;
Brothers and sisters, nephews and nieces; and,
The State.
The surviving spouse and the illegitimate children or descendants of the deceased are considered as “concurring compulsory heirs” and they succeed, as a general rule, together with the primary or secondary heirs.
Gifts during the lifetime of the owner are advances from the inheritance
Philippine law considers all property given during the lifetime of the deceased as advances from his/her estate. Thus, any property which the deceased gave or donated to other persons before death must be returned to his/her estate. This is known as collation. The actual gifts are not brought to collation, but only their value at the time they were given.
The purpose of collation is to estimate the value of the legitime of compulsory heirs and the amount of the free portion. Philippine rules of evidence apply, so that testimonial or documentary proof of the value of each gift must be presented to the court. There is no limit, in time or size, to the gifts considered. Even if the gifts were made before the compulsory heirs were born, they are collated. However, in practice, it is difficult to prove the value of small gifts, and gifts made a long time ago may be forgotten. Normally, collation only includes real estate (i.e. land, buildings, condominium units, apartments) and valuable personal possessions (e.g. jewelry, cars, stocks, shares, club memberships) for which documentary proof or evidence can be presented to the court.
The values of gifts to compulsory heirs are chargeable against (i.e. deducted from) their legitime, except if the donor has expressed that “collation shall not take place” which means that the values of the gifts are deducted from the free portion. Gifts to persons who are not compulsory heirs are always chargeable against the free portion. If the total value of the gifts exceeds the free portion, then they are considered inofficious, in which case, the excess must be returned to the compulsory heirs. The law contemplates the return of property of the same nature, class and quality, as far as possible.
Ownership of real estate in the Philippines is determined by the Torrens title.
One of the cardinal principles in the Philippines is the indefeasibility of the Torrens Title to determine the ownership of real property. The registered owner indicated on the Torrens Title, and the incidents annotated therein, generally defeat any other claim, or claimant, not so registered. The Torrens Title system is quite reliable and has been used effectively to defeat the claims of some unscrupulous Filipinos who attempt to acquire other people’s real estate in the Philippines by means of spurious or fake titles. A foreigner who purchases or inherits real property in the Philippines is therefore strongly advised to avoid such problems by procuring the services of a local lawyer to ensure that his/her name is registered as the legal owner on the Torrens Title.
from http://www.globalpropertyguide.com/Asia/Philippines/Inheritance
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