7434 Yakal St. Brgy.

San Antonio, Makati City

LEGAL ASPECTS OF REAL ESTATE

by:

ATTY. ROLANDO B. PAGTOLON-AN, REB, REA

FUNDAMENTALS OF SUCCESSION

What is succession?

Succession is the placing of one person in the place of another and defined
as the transmission of rights and properties from one to another. In this sense,
succession may be inter vivos or mortis causa, depending upon whether
the transfer is effective during the lifetime or inter vivos of the giver, or after
his death or mortiscausa.

The New Civil Code defined it as:

“Art. 774. Succession is a mode of acquisition by virtue of which the

property, rights and obligations to the extent of the value of the
inheritance, of a person are transmitted through his death to another
or others either by his will or by operation of law. (n)”

What are the elements of succession?

Decedent who is the person who died and whose property is transmitted
through succession. It is the general term applied to the person whose
property is transmitted through succession, whether or not he left a will. The
testator is the decedent whose properties are to be transferred to his
successor through a written will. A transfer of property from a decedent
without a will is called intestate.

The law defined it as:

“Art. 775. In this Title, “decedent” is the general term applied to the
person whose property is transmitted through succession, whether or
not he left a will. If he left a will, he is also called the testator. (n)”

Successor or the heir is the person to whom the property or property rights is to be
transferred. They may also be called as heirs, devisees or legatees which is
defined by law as:

“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 by virtue of a will. (n)
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ATTY. ROLANDO B. PAGTOLON-AN, REB, REA
iACADEMY School of Business
Death of the decedent
The rights to the succession are transmitted from the moment of the death
of the decedent.

Inheritance refers to the properties or property rights of a decedent, which is the

subject matter of succession.

What are the kinds of successors?

Compulsory heirs are those for whom the legitime is reserved by law, and
who succeed whether the testator likes it or not. They cannot be deprived
by the testator of their legitime except by disinheritance properly effected.

They may be primary or those who have precedence over and exclude
other Compulsory Heirs as in the case of Legitimate Children and
Descendants (LCD);

They may also be secondary or those who succeed only in the absence of
the Primary Compulsory Heirs as in the cases of Legitimate Parents and
Ascendants (LPA); Lastly, they may also be concurring o those who
succeed together with the Primary or Secondary Heirs as in the cases of
Illegitimate Children and Descendants (ICD)Surviving Spouse (SS)

Voluntary heirs are those other than the compulsory heirs. The devisee is the
person to whom a gift of real property is given by virtue of a will while a
legatee is the person to whom a gift of personal property (bequest) is given
by virtue of a will.

How may an estate be settled?

The estate may be settled judicially or through the aid of courts or extra-
judicially or only among the parties concerned.

What are the requirements for a valid extra-judicial settlement of estate?

1) The decedent left no will.

2) The decedent left no debts, or if there were debts left, all had been
paid.
3) The heirs are all of legal age, or if they are minors, the latter are
represented by their judicial guardian or legal representatives;
4) The partition was made by means of a public instrument or affidavit
duly filed with the Register of Deeds.

Note: (The affidavit must be executed by the heirs and must contain the
necessary allegations to support a valid extrajudicial settlement of estate.
The affidavit shall be published in a newspaper of general circulation, once
a week for three (3) consecutive weeks.)

Who are responsible for the collation of the estate?

Executor or the person named in the will by the testator to carry out its
contents.
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ATTY. ROLANDO B. PAGTOLON-AN, REB, REA
iACADEMY School of Business
 Administrator or the person appointed by the court to administer and
distribute the estate of the decedent if there is no will, or if no executor
named in the will, or if the person named in the will does not act or execute
its contents.

What is testamentary succession?

Testamentary succession is defined in this provision:

“Art. 779. Testamentary succession is that which results from the

designation of an heir, made in a will executed in the form prescribed
by law. (n)”

What are the rules in testamentary succession?

Any person who is 18 years old and above of sound mind may make a valid
last will and testament.

What is a will?

A will is an act whereby a person is permitted, with the formalities prescribed

by law, to control to a certain degree the disposition of his estate upon his
death. It may either be a holographic will which is one entirely written,
dated, and signed by the testator himself and is subject to no formalities or
a notarial will which is a will other than a Holographic Will that conform to
all the requirements of law.

Holographic Will Notarial Will

is one entirely written, dated, and is a will other than a Holographic Will
signed by the testator himself and is that conform to all the requirements of
subject to no formalities. law.

What is a codicil?

A codicil is a supplement or an addition to a will, made after the execution

of a will and annexed to the will and to be taken as part thereof, by any
disposition made in the original will is explained, added to, or altered.

What is disinheritance?

Disinheritance is an act by which an owner of an estate deprives a person

who would otherwise be his heir, or the right to inherit it. It can be effected
only through a will wherein the legal cause shall be specified. The cause
must be one authorized or enumerated by law. The burden of proving the
truth of the cause of the disinheritance shall rest upon the heirs of the
testator, if the disinherited heir should deny it. Further, the New Civil Code
has made mention of disinheritance in this article:

“Art. 915. A compulsory heir may, in consequence of disinheritance,

be deprived of his legitime, for causes expressly stated by law. (848a)”

What are the grounds for disinheritance of a descendant?

The grounds for disinheritance is expressly stated in this article:

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ATTY. ROLANDO B. PAGTOLON-AN, REB, REA
iACADEMY School of Business
“Art. 919. The following shall be sufficient causes for the disinheritance
of children and descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt

against the life of the testator, his or her spouse, descendants, or
ascendants;

*There should be a final judgment of conviction by a court of justice of

the guilt of the descendant which however, may come before or
after the execution of the will and the guilt must be established.

(2) When a child or descendant has accused the testator of a crime

for which the law prescribes imprisonment for six years or more, if
the accusation has been found groundless;

*The act of accusing as understood in this paragraph may include the

institution of a criminal action, or even the mere statement of the
heir as a witness in a case against the testator, a statement where
said heir affirms or corroborates the accusation. As a matter of
fact, if the heir-witness is in possession of facts which might result in
the testator’s acquittal and the heir-witness deliberately fails to
reveal said facts, there is also an “accusation.”

(3) When a child or descendant has been convicted of adultery or

concubinage with the spouse of the testator;

*It is essential that there must be a final judgment of conviction either

in the adultery caseor in the concubinage case before this Article
can be applied.

(4) When a child or descendant by fraud, violence, intimidation, or

undue influence causes the testator to make a will or to change
one already made;

*No judicial demand is needed for the law does not require this. Note
that when a judicial pronouncement is needed, the law says so.

(5) A refusal without justifiable cause to support the parent or

ascendant who disinherits such child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or

descendant;

*Note that maltreatment by an ascendant of a descendant does not

constitute a ground for the descendant to disinherit the
ascendant, for while it may be an abuse, it is generally in the
exercise of a power. The reverse is however repugnant to natural
law, and is therefore a ground for disinheritance.

(7) When a child or descendant leads a dishonorable or disgraceful

life;

*There need not be final judgment of conviction. The essence of the

cause is that anything that brings dishonor or disgrace to the family
of the testator merits correction in the form of disinheritance.
However, a single act is not ordinarily sufficient, for “leading a life”
implies continuity.
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ATTY. ROLANDO B. PAGTOLON-AN, REB, REA
iACADEMY School of Business
 (8) Conviction of a crime which carries with it the penalty of civil
interdiction. (756, 853,674a)”

What are the grounds for disinheritance of an ascendant?

The grounds for disinheritance is expressly stated in this article:

“Art. 920. The following shall be sufficient causes for the disinheritance
of parents or ascendants, whether legitimate or illegitimate:

(1) When the parents have abandoned their children or induced their
daughters to live a corrupt or immoral life, or attempted against
their virtue;

*Abandonment is indeed physical, moral, social or educational;

hence, it does not have the technical signification of
“abandonment” under the Rev. Penal Code. Moreover, whether
intentional or not, the negligent and careless failure to perform
the duties of parenthood is a significant element of
abandonment.

(2) When the parent or ascendant has been convicted of an attempt

against the life of the testator, his or her spouse, descendants, or
ascendants;

(3) When the parent or ascendant 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 false;

(4) When the parent or ascendant has been convicted of adultery or

concubinage with the spouse of the testator;

(5) When the parent or ascendant by fraud, violence, intimidation, or

undue influence causes the testator to make a will or to change
one already made;

(6) The loss of parental authority for causes specified in this Code;

(7) The refusal to support the children or descendants without

justifiable cause;

(8) An attempt by one of the parents against the life of the other,
unless there has been a reconciliation between them. (756, 854,
674a)

*Note well that this paragraph does not apply when the attempt is
against the life of a person other than the other parent. When a
father for instance attempts to kill his own father-in-law, the son of
the offending father cannot disinherit him on this ground.”

What are the grounds for disinheritance of a spouse?

The grounds for disinheritance is expressly stated in this article:

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ATTY. ROLANDO B. PAGTOLON-AN, REB, REA
iACADEMY School of Business
 “Art. 921. The following shall be sufficient causes for disinheriting a
spouse:

(1) When the spouse has been convicted of an attempt against the
life of the testator, his or her descendants, or ascendants;

(2) When the spouse has accused the testator of a crime for which the
law prescribes imprisonment of six years or more, and the
accusation has been found to be false;

(3) When the spouse by fraud, violence, intimidation, or undue

influence cause the testator to make a will or to change one
already made;

(4) When the spouse has given cause for legal separation;

(5) When the spouse has given grounds for the loss of parental
authority;

(6) Unjustifiable refusal to support the children or the other spouse.

(756, 855, 674a)”

What is legal or intestate succession?

Legal or intestate succession is a legal succession because it takes effect

through the operation of law because there is no decedent’s last will and
testament to dispose the estate. A person who died without leaving a will is
said to have died intestate.

When is there intestate succession?

There is intestate succession when there is no written will, the will is void, the
will lost its validity or no one is named as successor in the will.

What is mixed succession?

The law defined it as:

“Art. 780. Mixed succession is that effected partly by will and partly by
operation of law. (n)”

*A testator made a will but omitted some properties, rights or has acquired some
properties after the execution of his last will and testament.

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ATTY. ROLANDO B. PAGTOLON-AN, REB, REA
iACADEMY School of Business