I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
This post talks about the manner of dividing an estate through a will (testate) or without one (intestate.)
Testate
The legitime is the portion of the estate to be given to the compulsory (automatic) heirs. 1/2 of the net estate goes to the compulsory heirs. The other half is called the Free Portion. The surviving spouse inherits from the free portion. What is left after all heirs, including the surviving spouse, get all their shares is called the disposable free portion. This disposable portion can be given by the testator to anybody. These are the shares:
If the survivor is:
1.) Legitimate children: 1/2 of the estate, divided among themselves in equal portions
2.) Legitimate parents: same
3.) Illegitimate parents: same
4.) Surviving spouse: same, but if the marriage was in articulo mortis 1/3 and 1/2 if living together with the deceased but celebrated the marriage in articulo mortis
5.) 1 legitimate child and the surviving spouse: 1/2 for the child and 1/4 for the spouse
6.) 2 or more legitimate children and surviving spouse: 1/2 to the children, to be divided equally and the spouse's share is equal to the share of 1 child
7.) 2 or more legitimate children, the surviving spouse and illegitimate children: 1/2 for the legitimate children (divided equally among them,) spouse gets a share equal to 1 legitimate child's and each illegitimate child gets a share of 1/2 of a legitimate child
8.) Legitimate parents and surviving spouse: parents get 1/2, spouse gets 1/4
9.) Illegitimate parents and surviving spouse: both get 1/4 each, illegitimate parents divide the 1/4 among themselves
10.) Surviving spouse and illegitimate children: both get 1/3 each, but illegitimate children divide the 1/3 among themselves
11.) Legitimate parents, illegitimate children and surviving spouse: parents get 1/2 (to be divided among themselves) spouse gets 1/8 and illegitimate children get 1/4 (also to be divided among themselves)
The remaining free portion after the division can be given by the testator to anybody. Collateral relatives (brothers, sisters, uncles, aunts, nephews and nieces) inherit only if there are no direct relatives. There is an entirely different rule for grandparents and grandchildren.
Intestate
The rules are different. The whole net estate is to be divided among the heirs.
If the survivor is:
1.) Legitimate children, illegitimate children, legitimate parents or surviving spouse only: the whole estate
2.) 1 legitimate child and surviving spouse: 1/2 each
3.) Surviving spouse and 2 or more legitimate children: divide the whole estate between them all in equal portions
4.) 2 or more legitimate children, surviving spouse and illegitimate children: satisfy legitime first, then divide the rest pro rata
5.) Legitimate parents and surviving spouse: 1/2 each
6.) Illegitimate parents and surviving spouse: 1/2 each
7.) Illegitimate children and surviving spouse: 1/2 each, but illegitimate children must divide their share equally among themselves
8.) Legitimate parents, illegitimate children and surviving spouse: parents get 1/2, illegitimate children get 1/4 and surviving spouse gets 1/4
9.) Surviving spouse and collateral relatives: 1/2 for the surviving spouse, 1/2 for the collateral relatives (to be divided equally among each other)
As you can see, it's actually less problematic if there's a will.
6 comments:
hi sir.
here's a problem.
X created a will providing that his children a,b,c, and d should receive equal shares. b and c died before x. B have E and F as children and C have G and H as his children. D repudiated his inheritance but have children I and J. if the net estate is 1.2M, distribute the inheritance.
I tried to answer this taking into consideration than although its a testamentary succession, Free portion is not essential, and that even if I compute for the free portion, the succession will still be the same. Although the parts received will be affected by laws on accretion, repudiation and representation. I answered this way:
A - 400,000
e - 200K
f- 200k
g-200k
h-200k
Good Day Sir!
I would like to cite a very common situation that can be useful to everybody.
There are 5 members of the family.
The parents are legally married way back 1972.
There are no pre-nuptial agreements or whatsoever.
They tie knots like it was just another day in the office.
The outcome was 3 healthy children, impronto ( triplets)
No other child was born after the triplets, because of "fetus death everytime"
No illegitimate child either from both.
So, the husband dies, and left 1000 pesos worth of properties with no liens and encumbrances.
The husband died a sudden death on his last supper, that he failed to say, record, documented, or uploaded any of his last words of will/testament or whatever it is. He died real fast he didn't know what hit him.
So the surviving family finally decides to divide/partition the 1000 pesos property.
Then, they found out that the 1000 pesos property was inherited by the husband from his parents way back World War 2.
Then, one of the children decided that all division/partition will undergo legal proceedings.
Question 1 : who should and how to start the legal partitioning of the property.
Question 2 : what is the most likely outcome of the partitioning of the 1000 peso property , granting that all lawyers/legal expenses are not included.
Question 3 : if still, one of the child disagrees with the court ruling, how far this will go, to the Supreme Court?
Question 4 : Can anybody of the surviving family sell their " supposedly share" prior to any court ruling
I think your answer is incorrect.
In testate succession, the right of representation covers only the legitime. Meaning the free portion shall not be included in the computation.
So for me the answer would be;
A 800k (200k legitime, 600k free portion)
E F G H 100k each (legitime only)
The answer would have been different if it was intestate succession.
-keen <3
But im only 80% sure.haha I'll review my book. :D
:) thanks sir. This was a year ago and yes i got my grade on this issue and i was wrong ahaha. Ill review mine as well so i can verify my profs answer. Maybe yours is the right one :) . Ill post it here
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