Subdividing the Estate amongst the Heirs

By | April 16, 2010

Q. Please help me see my way through the following dilemma:

1. My father died intestate, how are we to divide the properties left behind with our mother and four siblings?

2. Another concern is that my brother has been estranged from his legal wife for 30 years. He got a live-in-partner and adopted a son some 25 years ago.

He died recently. Is his estranged wife entitled to his properties left behind, how about the live-in-partner and the adopted son? There have been no adoption papers for his son. Thank you for your assistance to this regard. FT.

Ans: Under the Philippine law on Intestate succession, only compulsory heirs of the deceased are entitled to inherit from his or her estate. Other relatives may inherit only upon default or absence of the compulsory heirs.

Under the Civil Code of the Philippines, compulsory heirs include the surviving spouse and the children whether legitimate or illegitimate. When we speak of intestate succession, it is understood that the deceased or decedent left no WILL upon his/her death.

In intestate succession, the estate of the deceased may be partitioned or subdivided either by:

1) Extrajudicial Settlement of Estate- Under this scheme the decedent do not have unpaid creditors and minor children and that all the heirs are in harmony as to the manner in which the property is to be subdivided or partitioned. And without going to the court, the heirs agreed amongst them to adjudicate the estate by means of instruments known “Extrajudicial Settlement of Estate” duly signed and notarized and have it published in the newspaper of general circulation for at least three (3) consecutive weeks. And of course to pay the required estate tax and compliance of procedure and administrative matters with the concerned government agencies.

– Under the law, the estate is divided by first liquidating the conjugal/matrimonial property. The legitimate spouse gets ½ portion of her share of the conjugal/matrimonial property and the remaining ½ which constitute the estate shall be divided equally amongst the heirs including the surviving spouse. Thus, for instance if there are 3 children, the estate shall be divided into four(4) share, with the surviving spouse getting one(1) share or the same share that each child inherits. – In case the child is illegitimate, his/her share is equivalent to only ½ of the shares of the legitimate child. Which are ¼ shares only.

2) Judicial Settlement of Estate- If the deceased left no will but there are creditors or claimants or an heir is minor or suffering from incapacity to act and/or the heirs cannot agree amongst themselves in the manner or partition or distribution of the estate, the settlement of estate shall be by means of Judicial Settlement. This means that the heirs or creditor(s) concerned have to file a petition in the Court of Law for the settlement of estate.

Unless there is a third party claimant, this scheme should be avoided as much as possible. Aside from being adversarial, this is also costly as parties will have to engage the services of lawyers. The process could take years to be resolved. The sharing of the heirs is the same as what is mentioned above, less the provisions for the payments of creditors, if any.

As to your number two (2) question. As to the estranged wife of your deceased brother , for as long as they are legally married and that marriage was not annulled , she is still considered as compulsory heirs of the deceased and as such entitled to inherit from her husband .

As to the adopted son, if the adoption is legal in the sense that the adoption was authorized by the court, then the adopted son is considered as a compulsory heir. However, if the birth certificate of the “adopted son” would show that the father is your deceased brother, and during the lifetime of your deceased brother, the status of this “adopted son” was never questioned him or any third party, and then he could be considered as a compulsory heir.

As to the live-in partner of the deceased, she is not entitled to inherit from the estate as she is not considered as a spouse under the law.

In either case, it is suggested that you confer with the professional services of a lawyer in the Philippines, who could provide you with professional assistance to protect and uphold your rights under the law. Thank you for writing and good luck.

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