PROVISIONS COMMON TO TESTATE

AND INTESTATE SUCCESSION

A. RIGHT OF ACCRETION
Accretion is a right by virtue of which, when two or more persons are called to the same
inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share,
or who died before the testator, is added or incorporated to that of his co-heir, co-devisees, or colegatees.1
In order that the right of accretion may take place in a testamentary succession, it shall be
necessary:
(1) That two or more persons be called to the same inheritance, or to the same portion
thereof, pro indiviso, and
(2) That one of the persons thus called die before the testator, or renounce the inheritance,
or be incapacitated to receive it.2
Requisites:
1. Two or more heirs, devisees and legatees are called to the same inheritance, devise or legacy
pro-indiviso.
Pro indiviso means without designation of parts or the portions are undivided.
2. One of the persons called:
a. Die before the testator
b. Renounce the inheritance
c. Be incapacitated to receive it.
Accretion takes place in testamentary and intestate succession, but not with respect to the
legitimes.3
Accretion takes place only if there is NO substitution or the right of representation will NOT
apply.
o In renunciation, there is always accretion because the right of representation will not
apply.
o In intestacy, apply representation first, if possible. If not, accretion will take place.
o In testamentary succession, apply substitution first if so provided by the testator. If not,
then accretion will apply.

Civil Code, Article 1015.

Id., Article 1016.
3
Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of
them, or to any of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs shall succeed to in their own right, and not by the right of accretion.
2

Provisions Common to Testate and Intestate Succession

ACCRETION
R enunciation
I ncapaity
P - redecease

SUBSTITUTION
R enunciation
I ncapaity
P - redecease

REPRESENTATION
D isinheritance
I ncapaity
P - redecease

Illustration 1:
I give P5,000.00 to A and B. If A dies and does not have any children or descendants,
accretion will take place. B will get P5,000.00, P2,500.00 by his own right and P2,500.00 by
accretion.
Illustration 2:
The decedent has four legitimate children, Anna, Bea, Carla and Dana. Anna predeceased
the decedent but is survived by two legitimate children, Ara and Ava. Bea renounced her
inheritance. The decedent left an estate worth P600,000.00. Distribute the estate.
If all heirs are present and capable of succeeding from the decedent, their shares will be:
Anna P150,000.00
Bea P150,000.00
Carla P150,000.00
Dana P150,000.00
Ara and Ava will inherit Annas share by right of representation; hence, each of them will
receive P75,000.00 per stirpes, or a total of P150,000.00.
Carla and Dana will each receive P150,000.00 per capita, or in their own right.
Beas share will accrue to the other heirs as a result of her renunciation; accordingly, her
share (P150,000.00) will be distributed as follows:
Ara P25,000.00
Ava P25,000.00
Carla P50,000.00
Dana P50,000.00
In sum, the estate will be distributed as follows:
Own Right
Ara
Ava
Carla
Dana
TOTAL

P150,000.00
150,000.00
P300,000.00

By
Representation
P75,000.00
75,000.00

P150,000.00

By Accretion
P25,000.00
25,000.00
50,000.00
50,000.00
P150,000.00

Total
P100,000.00
100,000.00
200,000.00
200,000.00
P600,000.00

Provisions Common to Testate and Intestate Succession

The heirs to whom the portion goes by the right of accretion take it in the same proportion that
they inherit.4
The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which
the heir who renounced or could not receive it would have had.5
B. CAPACITY TO SUCCEED BY WILL OR BY INTESTACY
Succession opens upon the death of the decedent.6 The heir, or his representative, must be
alive when succession opens. A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born later under the conditions prescribed in
article 41.7
A testamentary disposition may be made to the State, provinces, municipal corporations,
private corporations, organizations, or associations for religious, scientific, cultural,
educational, or charitable purposes.
All other corporations or entities may succeed under a will, unless there is a provision to
the contrary in their charter or the laws of their creation, and always subject to the same.8
o Testamentary provisions can be made in favor of juridical persons provided:
It is allowed by their charter.
They have juridical personality.
They are existing at the time of death of the testator.
The following are incapable of succeeding:9
1. The priest who heard the confession of the testator during his last illness, or the
minister of the gospel who extended spiritual aid to him during the same period;
o priest or minister of the gospel applies to all spiritual ministers, regardless of
religion. It is presumed that the spiritual minister used his moral influence to
induce or influence the sick person to make a testamentary disposition in his
favor.
o Requisites:
(a) The will was made during the last illness;
(b) The spiritual ministration must have been extended during the last illness;
(c) The will was executed during or after the spiritual ministration.
4
5
6
7
8
9

Civil Code, Article 1019.

Id., Article 1020.
Id., Article 777.
Id., Article 1025.
Id., Article 1026.
Id., Article 1027.

Provisions Common to Testate and Intestate Succession

o The priest is incapacitated to succeed when the confession is made prior to the
making of a will. If simultaneous, the priest is still disqualified. If the will is
made first, the priest can inherit.
o If the confession was made before the will was made and the priest is the son of
the sick person, he can receive his legitime. If the priest was a brother of the
decedent, he can inherit by intestacy.
Disqualification applies only to
testamentary dispositions.
2. The relatives of such priest or minister of the gospel within the fourth degree, the
church, order, chapter, community, organization, or institution to which such priest or
minister may belong;
o To disqualify the spouse of the minister of the gospel, apply Article 103110 of the
Civil Code. What you cannot do directly, you cannot do indirectly. Thus, it must
be established that the testamentary benefaction given to the wife was meant to
benefit the minister.
3. A guardian with respect to testamentary dispositions given by a ward in his favor
before the final accounts of the guardianship have been approved, even if the testator
should die after the approval thereof; nevertheless, any provision made by the ward in
favor of the guardian when the latter is his ascendants, descendant, brother, sister, or
spouse, shall be valid;
o General rule: Disqualification applies when the disposition is made after the
guardianship began (beginning of the guardianship) and before termination of
guardianship (approval of final accounts or lifting of guardianship.)
Exception: Disposition is valid when the guardian is an ascendant, descendant,
brother, sister or spouse.
4. Any attesting witness to the execution of a will, the spouse, parents, or children, or any
one claiming under such witness, spouse, parents, or children;
5. Any physician, surgeon, nurse, health officer or druggist who took care of the testator
during his last illness;
o Requisites:
a. The will was made during the last illness
b. The sick person must have been taken care of during his last illness. Medical
attendance was made.
c. The will was executed during or after he was being taken cared of.

10

Art. 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or
made through an intermediary, shall be void.

Provisions Common to Testate and Intestate Succession

6. Individuals, associations and corporations not permitted by law to inherit.

The following are incapable of succeeding because of UNWORTHINESS:11
1. Parents who have abandoned their children or induced their daughters to lead a
corrupt or immoral life, or attempted against their virtues;
2. Any person who has been convicted of an attempt against the life of the testator, his or
her spouse, descendants or ascendants;
3. Any person who has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found to be groundless;
4. Any heir of full age who, having knowledge of the violent death of the testator, should
fail to report it to an officer of the law within a month, unless the authorities have
already taken action; this prohibition shall not apply to cases wherein, according to law,
there is no obligation to make an accusation;
5. Any person convicted of adultery or concubinage with the spouse of the testator;
6. Any person who by fraud, violence, intimidation, or undue influence should cause the
testator to make a will or to change one already made;
7. Any person who by the same means prevents another from making a will, or from
revoking one already made, or who supplants, conceals, or alters the latter's will;
8. Any person who falsifies or forges a supposed will of the decedent.
o Grounds 1-3 and 5-6 are the same as in disinheritance. Even if the testator fails to
disinherit an heir, he may still be disqualified under Article 1032 because the
effects are the same.
o Ground No. 4 is actually inapplicable because there is no legal obligation to
accuse, only a civil or moral duty.
o Grounds 6-8 cover cases relating to a will:
a. Causing the testator to make a will
b. Causing the testator to change an existing will
c. Preventing the decedent from making a will
d. Preventing the testator from revoking his will
e. Supplanting, concealing, or altering the testator's will
f. f. Falsifying or forging a supposed will of the decedent.
o The causes of unworthiness shall be without effect if the testator had knowledge
thereof at the time he made the will (testator is presumed to have
pardoned/forgiven the offender), or if, having known of them subsequently, he
should condone them in writing.12
o The capacity of an heir, legatee or devisee should be determined at the time of the
death of the decedent.

11
12

Civil Code, Article 1032.

Id., Article 1033.

Provisions Common to Testate and Intestate Succession

Exceptions:
a. Under grounds 2, 3 and 5 of Article 1032, final judgment of conviction is
necessary.
b. If the institution, devise or legacy should be conditional, the time of the
compliance with the condition shall also be considered (along with the time
of death of the decedent).13

C. ACCEPTANCE AND REPUDIATION OF INHERITANCE

No person may accept or repudiate an inheritance unless he is certain of (1) the death of the
person from whom he is to inherit, and of (2) his right to the inheritance. 14

Common
characteristics

Modes

ACCEPTANCE
REPUDIATION
Voluntary and free
Rules for acceptance are more liberal than the rules of
renunciation because the former are beneficial to the
heir while the latter is prejudicial to the heir.
Shall always retroact to the moment of the death of the
decedent.
Irrevocable once made; except when it was made
through any of the causes that vitiate consent, or when
an unknown will appears.
May be express or tacit:
Must be made:
(a) if express must be
(a) in a public or authentic
made in a public or
instrument; or
private document
(b) by petition presented to
(b) if tacit refer to Articles
the court having
1050 and 1057
jurisdiction over the
i. by acts of ownership
testamentary or
sells, donates or
intestate proceedings
assigns his rights to a
stranger, or to his coheirs, or to any of
them;
ii. renounces in favor of
his co-heir
iii. heir, devisee or
legatee fails to signify
to the court whether
they accept or
repudiate the
inheritance within 30

13
14

Civil Code, Article 1034.

Id., Article 1043.

Provisions Common to Testate and Intestate Succession

ACCEPTANCE
days from their
receipt of the order
for the distribution of
the estate.
Minors or
incapacitated
persons
Corporations,
associations,
institutions and
entities qualified to
acquire property
Public official
establishments
Married woman of
age
Deaf-mutes who
can read and write
Deaf-mutes who
cannot read and
write

REPUDIATION

Thru parents or guardians

By judicial authorization

Thru lawful representatives

Requires court approval

Requires approval of the

government
Even without the consent of
her husband; except if she is
insane
Personally or thru an agent
Thru their guardians

Needs court approval

D. PARTITION AND DISTRIBUTION OF THE ESTATE

Partition separation, division and assignment of a thing held in common among those to whom it
may belong.
Partition is relevant only when there are two (2) or more heirs.
Not a mode of acquiring ownership; it is a special proceeding.
Modes/Kinds of Partition:
EXTRAJUDICIAL
Decedent dies intestate and there are
no debts;
All heirs agree among themselves to
partition the estate. Partition is valid
upon agreement of the heirs
If registered property is included, the
partition must be published in a
public document. Then, the heirs
must proceed to the Registry of
Deeds to have the title transferred in
their names.

JUDICIAL
Ordinary action for partition.

Provisions Common to Testate and Intestate Succession

Who may demand partition?

1.
2.
3.
4.

a compulsory heir;
a voluntary heir;
a legatee/devisee; or
any person who has acquired an interest in the estate

Exception: The testator have expressly forbidden its partition, in which case the period of
indivision shall not exceed twenty years as provided in article 494. This power of the testator to
prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership terminates when one of the
causes for which partnership is dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one of the co-heirs.15
Who may effect partition?
1. decedent/testator himself;
2. MANDATARY a third person who is not an heir; has the duty to (a) make an inventory
of the properties comprising the estate; and (b) notify the heirs, legatees, devisees and
creditors of the partition
3. Heirs themselves
4. By a competent court
Acts which constitute partition:16
1. Physical partition, e.g., actually dividing the land.
2. Constructive partition
Art. 1086. Should a thing be divisible, or would be much impaired by its being divided,
it may be adjudicated to one of the heirs, provided he shall pay the others the excess in
cash.
Nevertheless, if any of the heirs should demand that the things be sold at public
auction and that strangers be allowed to bid, this must be done.
Right of redemption of a co-heir:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor.

15

Article 1083, Civil Code.

Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction.
16

Provisions Common to Testate and Intestate Succession

o The right of redemption of a co-heir applies when his co-heir sells his undivided
share, or a portion thereof, in the estate to a stranger.
o The right of redemption of a co-heir under Art. 1088 is similar with the right of
redemption of a co-owner under Art. 1620,17 except that Art. 1088 applies to the
hereditary mass while Art. 1620 applies to a specific property.
o If only one heir will exercise the right of redemption, he must pay the purchase
price. If more than one heir will redeem, they must pay the purchase price in
proportion to their share in the property.

Effects of partition:
1. Co-ownership is terminated;
2. Exclusive ownership over property adjudicated is vested.

E. EXECUTORS AND ADMINISTRATORS

Executor
Administrator
Appointed by the testator in his will; Appointed if
issued Letters Testamentary
1. no executor is named in the will;
2. the executor or executors are
incompetent, refuse the trust or
fails to give bond; or
3. a person dies intestate
issued Letters of Administration or
Letters of Administration with a Will
Annexed
Who may serve as an executor or administrator?
Any COMPETENT PERSON, except:
1. a minor;
2. not a resident of the Philippines; and
3. in the opinion of the court unfit to execute the duties of the trust by reason of
a. drunkenness;
b. improvidence;
c. want of understanding or integrity; or
d. conviction of an offense involving moral turpitude.18
17

Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of
them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they
may respectively have in the thing owned in common.
18
Section 1, Rule 78 of the Rules of Court.

Provisions Common to Testate and Intestate Succession

10

Order of preference in granting Letters of Administration

a. To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to serve;
b. If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of
kin, neglects for thirty (30) days after the death of the person to apply for administration
or to request that administration be granted to some other person, it may be granted to
one or more of the principal creditors, if may be granted to one or more of the principal
creditors, if competent and willing to serve;
c. If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.19

Appointment of a SPECIAL ADMINISTRATOR:

1. When there is delay in granting letters testamentary or of administration by any cause
including an appeal from the allowance or disallowance of a will; or
2. When the executor is a claimant of the estate he represents.
Actions against executors or administrators:
1. recovery of real or personal property, or an interest therein, from the estate;
2. enforcement of lien;
3. action to recover damages for any injury to person or property, real or personal
(tortuous acts).20

19
20

Section 6, Rule 78 of the Rules of Court.

Section 1, Rule 87 of the Rules of Court.