My Board
Academics => Legal Department => Topic started by: puswekster on October 06, 2013, 03:28:40 AM
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Mga Sirs, sana matulungan nyo ako..
My grandfather passed away last year. My father has 4 other siblings, 1 of which is from the US. Ung apat including my father is currently occupying/using most of the parcels of land. Sa tatay ko is in a commercial area around 500- 1000 sq.m. Ung sa 3 magkakapatid are agricultural land on the average of 10 hectares or more.
Lately dumating ung eldest sibling ng tatay ko with the "purpose" of consolidating all the properties left by my grandparents and to subdivide it equally to the five of them. She has already asked the 3 other sibling to grant her the ability to process the papers for the said purpose.
The problem is this.
1. When she found out the assesed value of the commercial land currently leased by my father to several tenants, she has decided without consulting my father to evict the tenants and put up a new building to serve as her residential/commercial building by the end of this year.
2. The other lots occupied by the other siblings will not be touched since according to her the lands that are currently occupied/ used will not be touched.
The questions are these:
1. Does she have the authority to do this to my father based solely with the written permission of their 3 other siblings to do this?
2. what are our possible course/s of action in this regard. should we wait for her to actually do the eviction and construction of the building?
I know this sounds a little bit complicated and more detailed study of a lawyer is needed but for now that we are still trying to raise money for paying one,any advise would help.
Thanks in advance.
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RULE 74
Summary Settlement of Estate
Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filled in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.
The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the nest succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.
Section 2. Summary settlement of estate of small value. — Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact is made to appear to the Court of First Instance having jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not less than one (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interest persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate, and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are of lawful age and legal capacity, or by their
guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper register's office.
Section 3. Bond to be filed by distributees. — The court, before allowing a partition in accordance with the provisions of the preceding section, my require the distributees, if property other than real is to be distributed, to file a bond in an amount to be fixed by court, conditioned for the payment of any just claim which may be filed under the next succeeding section.
Section 4. Liability of distributees and estate. — If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. And if within the same time of two (2) years, it shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made.
Section 5. Period for claim of minor or incapacitated person. — If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one (1) year after such disability is removed.
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Pwede po paghati hatiian extrajudicially, pero sa tingin ko dpo pwede sa kwento nyo. kaya pwede po ang solusyon ay an action for partion. Wag po nyo hintayin na mag construct sya ng kung anu ano kasi po meron tayong principle sa possession na ibig sabihin ang presumption po na nagmamay ari ng lupa ay kung sinu ang nakaposition. at kung sa mga kaso po ng partion kinokonsider po ng korte yung mga dati nang nakatayo or improvement or mga dati nang nakapag patayo ng bahay na more or less mag maliit yung damage kung sakaling kailngang gibain kung anu mang inintroiduce na improvement.
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Maraming salamat po.. In case po sa letter authorizing her to consolidate the lands for subdivision/distribution na pirmado ng iba nilang mga kapatid,binding po ba ito sa tatay ko considering that hindi sya nakapirma?
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yes kasi majority ng heirs ay pumirma. i think hindi yun ang issue, diba kung sakali man sya ang administartor at hindi favorable yung father mo sa plan of partition pwede parin nya file ng action for partition.
at kung sya ang administrator at hinati nya yung estate at gusto ng father mo no prob db.
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maraming salamat po sa tulong sir memento mori...
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Did your father leased the property or is it the tenants who leased it? Is the leased registered?
1. Yes, kasi majority lang ang kailangan though your father can object.
2. No, kasi it might prejudice your father later on.
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Hi Sir Charlie,
It is the tenants who leased it.
Another few questions pa po pala..
1. Since his other siblings has appointed their eldest sister as the consolidator/administrator of the properties, does it remove my father's right to continue administering/ the property even though yun lng ang only property that she overtook since yung mga ricelands na sinasaka ng iba nilang kapatid will continue to be managed/administered by the ones who currently "own" it? (I might be paranoid, but the way I see it is that, she just wants to remove the current tenants and construct her own building so that she could claim that she is the one who made improvements on the said lot thereby depriving my father of getting income from the said property.)
2. They are claiming, that the said property was given to the eldest sibling by mother who died over 20 years ago based on a will. My question is, if the sharing is inequitable, can we question the will's legitimacy?
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Hi Sir Charlie,
It is the tenants who leased it.
Another few questions pa po pala..
1. Since his other siblings has appointed their eldest sister as the consolidator/administrator of the properties, does it remove my father's right to continue administering/ the property even though yun lng ang only property that she overtook since yung mga ricelands na sinasaka ng iba nilang kapatid will continue to be managed/administered by the ones who currently "own" it? (I might be paranoid, but the way I see it is that, she just wants to remove the current tenants and construct her own building so that she could claim that she is the one who made improvements on the said lot thereby depriving my father of getting income from the said property.)
2. They are claiming, that the said property was given to the eldest sibling by mother who died over 20 years ago based on a will. My question is, if the sharing is inequitable, can we question the will's legitimacy?
Sir, lahat po ng will kailangang ma probate. At hindi po ibig sabihin pwede nila sabihin lang na ganun. Dinala po ba nila sa korte yung will? pag hindi nila dinala sa korte pwede nating pilitin na ipa probate nila yan.
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Hi Sir Charlie,
It is the tenants who leased it.
Another few questions pa po pala..
1. Since his other siblings has appointed their eldest sister as the consolidator/administrator of the properties, does it remove my father's right to continue administering/ the property even though yun lng ang only property that she overtook since yung mga ricelands na sinasaka ng iba nilang kapatid will continue to be managed/administered by the ones who currently "own" it? (I might be paranoid, but the way I see it is that, she just wants to remove the current tenants and construct her own building so that she could claim that she is the one who made improvements on the said lot thereby depriving my father of getting income from the said property.)
2. They are claiming, that the said property was given to the eldest sibling by mother who died over 20 years ago based on a will. My question is, if the sharing is inequitable, can we question the will's legitimacy?
Is the leased registered?
may proof ba sila ng will? a will or a donation (i.e those who donated everything they have para lang di nila maipamana sa kanilang itinakwil na anak) should not undermine or prejudice the compulsory share given by law to the descendants.
My advice to you is that you should file a judicial settlement of estates para ang korte na ang magtatakda sa shares.
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Tama si sir charlie. Will man yan or donation dapat sundin nila proseso. May provision sa batas na tamang hatian sir kahit pa may will. Meron tayong tinatawag na legitime.
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Is the leased registered?
may proof ba sila ng will? a will or a donation (i.e those who donated everything they have para lang di nila maipamana sa kanilang itinakwil na anak) should not undermine or prejudice the compulsory share given by law to the descendants.
My advice to you is that you should file a judicial settlement of estates para ang korte na ang magtatakda sa shares.
Sir Charlie,
Ano po yung ibig sabihin na registered yung lease? Meaning po ba nun eh kung my notarized contract ung lease?
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Sir Charlie,
Ano po yung ibig sabihin na registered yung lease? Meaning po ba nun eh kung my notarized contract ung lease?
Sir Charlie sagutin ko na ha...pag ang lease contract po ay tatakbo sa isang taon or higit pa kaylangan po ito ipagerister. Ito po ay ipanotaryo at iattach sa titulo ng lupa sa register of deeds. Ibig sabihin po real property po ang subject ng lease contract.
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Maraming salamat Sir Memento Mori and Sir Charlie sa advices.. Will follow this up with my father and come back in case there are things that needs to clarify pa..
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Maraming salamat Sir Memento Mori and Sir Charlie sa advices.. Will follow this up with my father and come back in case there are things that needs to clarify pa..
Welcome sir, Pag may iba ka pang katanungan sir post mo agad hehe
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Sir memento mori covered the legalities well enough.
However, there are other details that you haven't disclosed. Your case will prosper or fail based on your father's legal position.
You are under no obligation to disclose them. But you need them for introspection and discernment, perhaps in discussing this "inheritance" problem with your father.
Let's cover some of the human and personal elements that may affect your case.
First of, is this your initiative - to look for legal advice - or your father's? What I mean here is that you are not a compulsory heir and you haven't acquired any rights to fight for your father's legal rights.
You need to be sure what your father wants. Does he want to fight her siblings in court? The courts will be the only one who can finally determine who gets what. If he's the one, go ahead and study your options. If you are the one, then stop at this time and talk to your father.
Secondly, you haven't disclosed the circumstances of how your father "administered" the commercial property. Was there a contract between your grandfather - verbal or formal - and were the siblings aware of any such "contract" or agreement?
What was the extent of the agreement? Was leasing the property a formal business? Was there a company established to lease the premises? Who was the "beneficial owner" of the leased premises? In other words, where did the income go? Your grandfather alone? Your father alone? Everyone?
When your grandfather passed away, everything became part of the estate, including the incomes derived from the leased premises. Everything should be accounted for.
If there was a will, the will should go into probate. That is the requirement of the law. The will should have mentioned who is the administrator and/or executor of the estate.
If there is no will, an intestate succession will take effect. All compulsory heirs - the children of the deceased - shall have equal shares. If there are any illegitimate children, also compulsory heirs, they will get, I think, half of a share of a legitimate child.
In an intestate succession, whoever gets the majority "vote" among the siblings will be appointed administrator. But the job of the administrator is to implement the division of the properties according to what the law prescribes or what the heirs unanimously approve in an out-of-court settlement.
If there was a will, by your grandmother, bequeathing the commercial property to the eldest sibling, as the other siblings claim - the reason why your father was "ejected" from the property - that will should have gone into probate when your grandmother passed away.
The requirement of the law on succession is to include all compulsory heirs. The probate process ensures that this is followed. If any compulsory heir was inadvertently omitted, the will may be declared null and void.
So the spirit of the law is "inclusion" of everyone, not exclusion, to protect the interests of all compulsory heirs. However, the law also allows an heir or heirs to be disinherited. This must be done explicitly whether in a validly prepared will (with the help of a lawyer) or a holographic will. The reason for disinheriting someone must be stated. Whatever the case (legal or holographic), there are certain requirements that must be followed, otherwise the will shall be null and void.
So unless there's a valid will disinheriting your father, the eldest cannot appropriate for herself the commercial property even if the other siblings agreed to it. Everyone, including your father must agree to extra-judicial partition of the properties.
Going back to my second point above, was there a perception, from the point of view of the other siblings, that your father took advantage of his role as administrator of the commercial property and appropriated the earnings for himself?
Two reasons why someone would take more than one is entitled for: 1) greed, or 2) perception of an injustice.
You don't have to answer this. Perhaps, something that you may want to discuss privately with your father.
Beyond the legalities, the bigger consideration is the human dimension - the family relationship that may be enhanced or destroyed by the (sense of) entitlement to inheritance. I'm sure that the destruction of the relationship of the siblings is not the intention of your grandparents.
So before you go into a legal battle against family members, have a heart to heart talk with your father. Be very very sure that you will do what he thinks is right, not what you think is right.
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Hi sir j4kst0n3,
Maraming salamat with your reply. To answer a few of your questions,
First of, is this your initiative - to look for legal advice - or your father's? What I mean here is that you are not a compulsory heir and you haven't acquired any rights to fight for your father's legal rights.
--- this is my initiative. This is because my father's siblings have not exerted an effort to contact my father when they talk about the inheritance. What they have agreed upon was only told to me by my uncle and aunt.What I am currently doing is proactively looking up the options that my father would take in case he decides on getting his inheritance. In case he does not want it, then we will also not pursue it as we as his children have no plans to meddle in the issue. I did not have a chance to talk to my father yet due to my work. Furthermore,my father is a technological dinosaur who doesn't own or want access to a cellphone or the net.
Secondly, you haven't disclosed the circumstances of how your father "administered" the commercial property. Was there a contract between your grandfather - verbal or formal - and were the siblings aware of any such "contract" or agreement?
--- to the best of my knowledge, there was no formal contract between my grandfather and/or his siblings regarding the usage of the land. Ang nangyari is like since he is the one near the properties, he would be the one in charge of those just as his 3 other siblings are the one in charge with the riceland in the area. The eldest sister doesn't have any "property" administered since she was in the US for over 30-40 years. My father and his 3 other siblings are using the properties as their source of income/livelihood.
Going back to my second point above, was there a perception, from the point of view of the other siblings, that your father took advantage of his role as administrator of the commercial property and appropriated the earnings for himself?
--- based on my latest contact with my father's 3 other siblings, there appears no such perception basically because, the other siblings were also getting income from the ricelands which if combined will actually worth more than the commercial property. I could not say if the eldest sibling has such perception as she seems to be holding her cards pretty close and seems to be just going along with the conversation, trying to extract as much information as she can.
I agree with you sir that this problem could destroy the relationship within the family which actually is already strained by previous events. I don't want fuel to the fire that is why I am seeking possible reasonable options to my father when I talk to him as he is prone to make drastic decisions.
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Sir Puswekster,
Thanks for the additional info.
Probably the best way to protect the interests, not only of your father, but also all of the siblings equally, lalo na kung walang last will and testament ang grandfather mo ay to go thru an intestate succession.
Bago maging full-blown court proceedings, ia-advise ng judge or fiscal na the siblings go through an extra-judicial settlement, that is magkaroon ng compromise agreement ang magkakapatid.
Kapag walang compromise agreement, ang lahat ng ari-arian ng grandfather mo ay hahatiin para sa lahat ng mga anak at sila ay magkakaroon ng equal share.
Pero dapat ready na ang pambayad ng inheritance taxes (20%). Try to find out kung nabayaran na ang taxes ng mga ari-arian at kung sino ang nagbayad nito. This should be done within 6 months of the death of the estate owner. Pag lumampas sa 6 months, meron ng mga penalties.
In effect, 80% lang ang paghahatian ng magkakapatid kasi yung 20% ay kokolektahin ng gobyerno.
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before po mag kakaroon ng dispositon ng inheritance yung administrator ay tasked to pay the taxes.
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pinaka-common case. usually mga magkakamag-anak nagtatalo dito.
:)
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