Where there’s a Will, there’s a Way

WALA LANG

Sex or money, preferably combined, heats up otherwise ho-hum COVID lockdowns.  With titillating peccadillos already taken for granted, it’s really money that raises antennae.  Siblings sue each other, children sue wicked madrasta, children sue widowed parent—all over inheritance.

Things get difficult when one or both parents have children separately and also together.  Who gets what when either or both parents die. It gets tougher when a previously unknown spouse and/or offspring shows up at the funeral. Prolonged lawsuits are also predictable when say a rich heiress marries, has kids with her husband, and then dies. Her widowed husband marries a second time and then kicks the bucket after transferring a good deal of his first wife’s treasures to the second.  Or when a parent transfers loads of assets to a favorite child and none to the others, before breathing his or her last.

LAST WILL Jose Rizal’s Mi Ultimo Adios (National Library)

It used to be different in the old days. The richest among my seven great-great-grandfathers gave half of his wealth to unico hijo (who, regretfully, was not my great-grandfather) and a third of the balance to each of his three daughters. The daughters accepted the decision though not necessarily gladly. This is close to what I am told is the custom of old-school Chinese who give little or nothing to daughters, because their husbands will inherit anyway from the husbands’ parents.

Nowadays our inheritance laws prescribe who gets one’s possessions when one departs this life. Take the simple case of one husband, one wife and four children, all legitimate. If the husband dies, his estate consists of one-half of the couple’s joint property and 100 percent of his separate property. Note that his wife remains the owner of the other half of their joint property and 100 percent of her own separate property.

If the padre de familia passes away without a Will, the Civil Code spells out who inherits. Half the husband’s estate (after allowing for gifts made while he was alive, estate tax, debt payment, burial cost, etc.) has to be equally divided among his legitimate children. Each of the four kids is therefore entitled to 12.5 percent of his or her father’s estate, i.e., half of the estate divided among the four siblings. The surviving spouse is similarly entitled to 12.5 percent. These are so-called compulsory heirs and their prescribed shares are known as their respective legitimes. By law, the pater cannot give compulsory heirs less than their legitimes. Wills have to provide for the legitimes of compulsory heirs. Indeed, non-compliance with legitimes accounts for a lot of family battles.

The 37.5 percent left after the compulsory heirs’ entitlements in our example is known as the estate’s “Free Portion.” Children born outside the kulambô who were recognized by the womanizing father have to be provided for out of the Free Portion.  Each can have up to half the share of one legitimate child. Simple arithmetic shows that in our example, an illegitimate child will receive less than 6.25 percent if there are more than six of them.

If there is a Will anything that remains of the Free Portion after deducting the shares of illegitimate child/children can be given to whoever the philanderer wants, e.g., loyal helpers, spouse and any of his kids thereby increasing their shares, friends and partners, charities, and others whom he wishes to remember except that he cannot leave anything to a querida.

The mystery novels I’ve been reading while in self-isolation since March last year often feature Last Will and Testaments and I wondered if these are applicable to us. Lawyer Ma. Victoria Rotor-Hilado, well known practitioner and author of books on inheritance law and estate planning, was kind enough to answer some questions. Atty. Hilado replies that in general, it would be appropriate to execute a Last Will and Testament when you want to prevent possible disputes among your heirs or when you worry that they may not respect your wishes. She cites some cases:

• If for some reason you wish to favor one (or more) of your kids, say the one who has been looking after you, his or herlegitime can be augmented from the Free Portion;
• When you would like a specific asset to go a particular child, e.g. the family corporation to go to son A, Palawan hectarage to son B, the family home to daughter C. This assumes that there are other assets available to complete the legitime of all the children;
• When you have conditions attached to the distribution of your assets, e.g., specifying that a son will receive his/her share when he graduates from college or gets married. Legitimes, however are not subject to a charge or condition, except under certain circumstances allowed by law;
• When you wish to disinherit a compulsory heirfor reasons specified in the Civil Code, e.g., attempted murder of yourself or your spouse, descendants or ascendants; maltreatment of yourself in word or deed by a child or descendant; dishonorable or disgraceful life led by a child or descendant.Disinheritance can only be done in a validly executed Will where the reason for the disinheritance is specified and only for legal grounds.It is added that the children or descendants of a disinherited heir will take the place and share of the disinherited heir;
• When you have a pre-deceased legitimate child who has an illegitimate child, your illegitimate apo cannot inherit the share of your deceased legitimate child.You need to provide for him or her out of the Free Portion.
• When you are illegitimate and your only relatives are from the legitimate line;
• In case you have neither parents, spouse nor children or other descendants, your siblings are automatically your heirs. Excluding a sibling or reducing the share of one or more of them can be done but only via a Will. Without a Will, the law will presume that you wanted to divide the estate equally among all your siblings. Actually, you can make a Will totally excluding your siblings because siblings are not compulsory heirs. You must make a Will if you wish to exclude any or all of your siblings or to leave them unequal shares.
• Your estate will go to government when you have no relatives within the fifth degree of relationship in the collateral line, unless you make appropriate provisions in your Will;

Atty. Hilado cautions that making a Will is expensive and takes time to implement because the law requires that it be probated, meaning that it has to go through the court. Anyone who feels aggrieved can contest the Will, further delaying matters and increasing cost. Apart from lawyers’ fees, there are court fees for probate that are pegged to the value of the estate.

Writing a Will is no DIY. Circumstances vary and the applicable law is complicated. It is best to secure legal advice to make sure that the form and terms of a Last Will and Testament are valid and are in accordance with law.

Note:  Your columnist is indebted to Atty. Ma. Victoria Rotor-Hilado for her help in preparing this article. Among her works are Heirs and Their Shares (Mandaluyong City: Anvil Publishing, Inc., 2016) and A Well-Ordered Estate (Mandaluyong City: Anvil Publishing, Inc., 2017).

Comments are cordially invited, addressed to [email protected].