TESTAMENTARY SUCCESSION

Testamentary succession takes place when, upon a persons death, his estate is transferred to his heirs through his Last Will and Testament. A person writes a will based on his property composition, family composition and desires and wishes. However, in writing a will, he has to follow certain legal parameters concerning the legitime. TYPES OF WILLS: 1. Notarial or Legal Will a document of property disposition subject to many requirements and formalities. Requisites of Notarial Will: a. It must be in writing; b. It must be executed in a language or dialect known to the testator; c. It must be subscribed (signed) by the testator himself at the end thereof or by the testators name on the same place by some other person in the testators presence and by his express direction; d. It must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another; e. It must be signed on the left margin, on each and every page thereof except the last by the testator (or the person requested by him to write his name) as well as by the instrumental witnesses; f. All pages must be numbered correlatively in letters palced on the upper part of each page; g. It must contain an attestation clause which shall state the number of pages upon which the will is written; and h. It must be acknowledged before a notary public by the testator and the witnesses. 2. Holographic Will a holographic will is a document of property disposition which must be entirely written, dated and signed by the testator himself, subject to no specific form and need not be witnessed. Requisites of Holographic Will: a. It must be handwritten in its entirety; b. It must be dated; and c. It must be signed by the testator himself.

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Legitime - is that part of the testators property which he cannot dispose of because the law has reserved it for certain persons who are, therefore, called compulsory heirs. It refers to the rightful share of a compulsory heir. Such share cannot be reduced nor impaired. It is the minimum that a compulsory heir is entitled to, the percentage size of which, relative to the whole estate, will depend on the number of compulsory heirs.

Free Portion is that part of the testators property which he can ill or give to whomever he likes, except to those expressly prohibited by law. After satisfying the minimum shares of compulsory heirs, whatever balance remaining can be given to whomever the estate owner likes. It can be given to anybody, within or outside the family, with the exception of those disallowed by law to receive donations. Those disallowed by law include: a) Persons with whom the testator is guilty of adultery or concubinage at the time of the execution (writing) of the will; b) Person with whom the testator is found guilty of the same criminal offense, in consideration thereof; and c) A public official, or his wife, decendants and ascendants, by reason of his office. Important notes on Legitimes: 1. Only compulsory heirs (legitimate children and parents and concurring compulsory heirs (illegitimate children and spouse), are entitled to a legitime. Collateral heirs, such as brothers and sisters are not. However, it does not mean that siblings cannot be made heirs in a testamentary succession. V Precisely, a testamentary succession allows the testator to institute siblings or even strangers as heirs by expressly providing for them in the will, subject to the limits imposed by law. Absent any provision for siblings in the will, they cannot be heirs in a testamentary succession. 2. Illegitimate children are entitled to less than those given to legitimate children the legitime of an illegitimate child is up to a maximum of one-half of the legitime of one legitimate child. It can be lesser depending on the number of legitimate and illegitimate children. However, the share of an illegitimate child may also be increased through a provision in the will, provided that the legitimes of other compulsory heirs are not impaired. 3. No burden, encumbrance, condition or substitution of any kind whatsoever may be imposed upon the legitime (Article 904, 2nd paragraph, Civil Code of the Philippines) 4. The free portion is only applicable in a testamentary succession precisely because it is intended to provide the testator a window to plan and possibly institute persons other than his compulsory heirs to take part in the inheritance. The free portion is irrelevant in the absence of a will. Testamentary Succession Page 2

5. The heirs can be given more but NEVER less than their respective legitimes.

Table of legitimes and free portion for testamentary succession.

Surviving Relatives Legitimate Children Alone One Leg. Child & Surviving Spouse Two or more Leg. Children, Surviving Spouse & Illeg. Children Surviving Spouse & Illegitimate Children Legitimate Children & Descendants divided by the number of children 1/2 divided by the number of children Surviving Spouse x 1/4 Illegitimate Children x x Legitimate Parents & Ascendants x x Illegitimate Parents x x Free Portion 1/2 1/4

(1) (2) (3)

(4)

the share of a leg. Same as the Child for each illeg. share of 1 Child subject to Free legitimate child Portion divided by the 1/3 number of illegitimate children 1/8 divided by the number of illegitimate children x divided by the number of illegitimate children x x

Balance, if any

1/3

(5) Leg. Parents (or ascendants), Surviving Spouse & Illegitimate Children (6) Legitimate Parents alone (7) Illegitimate Children alone

1/2

1/8

1/2

1/2

1/2

(8) Surviving Spouse alone (9) Legitimate Parents & Surviving Spouse (10) Illegitimate Parents alone (11) Illegitimate Parents & Surviving Spouse

x x

1/2, 1/3, 1/2* 1/4

x 1/2

x x

Balance 1/4

x x

x 1/4

x x

x x

1/2 1/4

1/2 1/2

* Art. 900. If the only survivor is the widow or widower, she or he shall be entitled to of the hereditary estate of the deceased spouse, and the testator may freely
dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis , and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be . (The New Civil Code Annotated by Edgardo L. Paras)

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Various examples of legitimes distribution.

1. Compulsory Heirs: Surviving Spouse

One Legitimate Child &

2. Compulsory Heirs: Two Legitimate Children & Surviving Spouse

3. Compulsory Heirs: & Surviving Spouse

Four Legitimate Children

4. Compulsory Heirs: Two Legitimate Children, one illegitimate child & Surviving Spouse

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5. Compulsory Heirs: Two Legitimate Children, four illegitimate children & Surviving Spouse

6. Compulsory Heirs: Legitimate parents, one illegitimate child & Surviving Spouse

7. Compulsory Heirs: Surviving Spouse

Legitimate parents &

8. Compulsory Heirs: Surviving Spouse & illegitimate parents

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