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79048443 Wills Strategy to Uribe

79048443 Wills Strategy to Uribe

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Published by Ambisyosa Pormanes

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Published by: Ambisyosa Pormanes on Mar 21, 2013
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Wills & Succession
/ Atty Uribe2
nd
Sem SY ’08-09
SUCCESSIONLegend:T
– Senator Tolentino’s comments
B
– Professor Balane’s comments
I. GENERAL PROVISIONS
Wills is a form of succession.Why emphasize wills – a) wills will minimize conflict between heirs; b) it represents the intent of the testator.The law only provides for the aliquot portion of the estate – and the heirs may fight for specific properties – but if there is a will made - which divides and designates properties (even the smallest jewelry) to particular heirs – it willbe better.More often than not – those who execute wills are those who have many properties
A. Definition and ConceptsArt. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to theextent of the value of the inheritance, of a person are transmitted through his death to another or otherseither by his will or by operation of law. (n)
Succession as a mode of acquisition – is not limited to acquiring ownership but includes the rights transmitted bydecedent.
Art. 712. Ownership is acquired by occupation and by intellectual creation.Ownership and other real rights over property are acquired and transmitted by law, by donation, by estateand intestate succession, and in consequence of certain contracts, by tradition.They may also be acquired by means of prescription.Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where therights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent. If a contract should contain some stipulation in favor of a third person, he may demand its fulfillmentprovided he communicated his acceptance to the obligor before its revocation. A mere incidental benefitor interest of a person is not sufficient. The contracting parties must have clearly and deliberatelyconferred a favor upon a third person.
When a person inherits – does he acquire ownership? – not necessarily. He can only have the right which thedecedent has (e.g. least, etc) - pede usufruct lang ang ibibigay in so far as testamentary provision is concerned.Other modes of acquisition:- tradition: mode of delivery – must be a consequence of certain contracts – like delivery in sales to transfer ownership- prescriptions: acquisitive prescription only, not those extinctive prescription which pertain to actions.What concepts in the Family Code is related to Family relations? – legitimes, devices and legatees.- intestate succession (only those within the family of decedent, degree of closeness)- concept of legitimes (only members of family)The date of effectivity of the NCC – August 30, 1950The date of effectivity of the Family Code – August 3, 1988What law deals with succession before the NCC was made effective – Old Civil Code of 1889
Basis of Law of Succession
Instances supporting concept on law of property- testamentary (because you’re the owner, you have the right to dispose the property)- wills- substitution
Legal Philosophy of the Civil Code on Succession
Socialization of ownership in succession – more people will benefit from the estate
Fundamental Changes in the NCC in line with the purpose of Socialization
1. The surviving spouse is given a better status in terms of succession to the property of the deceased husband,her right to the property was improved from a mere usufruct to full ownership.
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Wills & Succession
/ Atty Uribe2
nd
Sem SY ’08-09
2. The illegitimate children are now given successional rights unlike the old civil code which does not. Further, theillegitimate child’s mother or father not related by blood has a chance of inheriting, thus, furthering the purpose of socialization preventing the property from staying within the same family. (Illegitimate children are not compulsoryheirs (no legitimes) under the old Civil Code – they can inherit only if made a devisee or legatee in a will).3. The abolition of the reservation – the reservas and reversions (except reserve troncal, which was reincorporatedby Congress) has been abolished.4. The free portion of the estate of the deceased is increased from
1
/
3
to ½. By giving the property to anyone whohas the capacity to succeed by way of a will. In the NCC – limiting to the 5
th
degree of relatives the inheritance –because in default of the heirs – the property will revert back to the State.
*
Other laws relevant to succession – other than the Civil Code- Rules of Court- Family Code – changes: – shares is equal among illegitimate children (3 kinds - acknowledged natural children, natural children by legalfiction, acknowledged illegitimate children who are not natural (spurious)) – change pertained to illegitimatechildren (regardless of kind-they will have the same share)- use of surname of father of illegitimate children-Other changes in the NCC - Holographic will; Ante mortem
B. Subjects of Succession
1. Who are the subjects? 
The Decedent
(testator)
 Art. 775. In this Title, "decedent" is the general term applied to the person whose property is transmittedthrough succession, whether or not he left a will. If he left a will, he is also called the testator.
Devisee – to those who, real property is given in a willLegatee – to those who, personal property is given in a willHeir – those who inherit in the general sense.Is a devisee an heir? Is an heir a devisee? – Not necessarily the same, An heir has an obligation to pay the credits – as to the value of the inheritance.Difference of heirs (782) – in general senseSpecific heirs – instituted by a will; Devisee – an heir in the specific sense Article 940 par 2 – if the heir, legatee or devisee, who may have been given the choice, dies before making it, thisright shall pass to the respective heirsCLASSIFICATION OF HEIRS1. Compulsory Heirsa. Primary Compulsory Heir (PCH) – only legitimate children and decedents; adopted children (only have similar rights as that of legitimate children; they have no right of representation (iron curtain rule) – cannot inherit fromgrandparents)*to be a compulsory heir – must they be related by blood? Not necessarily- because of adoption (adopted children has no right of representation – they cannot inherit from grandparents).- Spouse (not blood related [blood related can be married – only beyond the 4
th
degree (2
nd
degree cousins)] Are all decedents – compulsory heirs? No, only legitimate childrenb. Secondary Compulsory Heir (SCH) – legitmate parents and ascendants (will only inherit in default of PCH)Illegitimate parents (parents of illegitimate children) – are compulsory heirs (secondary compulsory heirs)c. Concurring Compulsory Heir (CCH) – surviving spouse; illegitimate children2. Voluntary HeirsOnly natural persons may be voluntary heirs? No, even juridical persons may be voluntary heirs (based on CC -1026 & 782)3. Legal Heirs
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Wills & Succession
/ Atty Uribe2
nd
Sem SY ’08-09
WHO ARE LEGAL HEIRS? (All compulsory heirs, collateral relatives, the state)
The Heir, devisee, Legatee
(All compulsory heirs)Is there a limitation (like the collateral relatives) in the direct line to be able to inherit? Say, up to the 10
th
civildegree? No limitation provided by law – but it is humanly impossible
a person may be considered compulsory heir – but it does not necessarily mean that he will inherit – hemay be disinherited, etc. (tagapagmana vs. magmamana)
Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law.Devisees and legatees are persons to whom gifts of real and personal property are respectively given byvirtue of a will.Art. 887. The following are compulsory heirs:(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(PCH)
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate childrenand descendants;
(SCH)
(3) The widow or widower;
(CCH)
(4) Acknowledged natural children and natural children by legal fiction;
(CCH)
(5) Other illegitimate children referred to in Article 287.
(CCH)
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do theyexclude one another.In all cases of illegitimate children, their filiation must be duly proved.The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in themanner and to the extent established by this Code. (807a)
(SCH)
The Collateral Relatives (
not necessarily legal heirs – must be within the 5
th
civil degree)2
nd
cousins – are heirs? No, because they are 6
th
degree removed from the decedent1
st
cousins – 4 degrees removedNieces & nephews, aunts & uncles (from cousins), brother of great grand father – 5 degrees removed
Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, thecollateral relatives shall succeed to the entire estate of the deceased in accordance with the followingarticles. (946a)Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equalshares. (947)Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. In relation to Article 975 which statesArt. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit fromthe latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shallinherit in equal portions.
Division per capita entails a division of the estate into as many equal parts as there are persons tosucceed. If there are three children, for instance, each will receive, per capita, one third of the estate.Division per capita is the general rule.
Division per stirpes is made when a sole descendant or a group of descendants represent a person inintestate succession. The sole representative or group of representatives are counted as one head.Thus, should a father be survived by a son and four children of another son who predeceased him,then, the estate is divided per stirpes. The first half is given to the surviving son and the other half shallbe divided among the four grandchildren.
Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949)Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother'sside, are the only survivors, all shall inherit in equal shares without distinction as to the origin of theproperty. (950)Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, inaccordance with the rules laid down for the brothers and sisters of the full blood. (915)
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