Heirs and their Shares: Essentials of Inheritance for Singles, the Married, and the Widowed

By Maria Victoria Rotor-Hilado

From the Foreword by Rubén F. Balane, Ateneo Law School professor:

“Walking with Pedro through his multifarious, protean life as single, as married, and as widower, Atty. Rotor-Hilado explains to the reader the various possible kinds of heirs he might have and the various options he may choose to dispose of his estate. He may, of course, choose to leave this world without a will. To whom, then, will his properties go? Or he may decide to make a will. How much, then, can he give away?

“Through this marvelous and informative book, Atty. Rotor-Hilado, using her lawyer’s knowledge and couching it in terms that are free of the ponderousness of legalese, guides the reader who is a non-lawyer to an adequate acquaintance with the law of succession—adequate, that is, as a basis for deciding to whom and in what amounts his estate should go when he himself goes . . .

“I invite the reader, across the broad band of the economic spectrum, whether he owns a fortune or a piece of real estate the size of a flower pot, to embark on this information-filled journey through successional law.”

• Language: English
• Publisher: Anvil Publishing, Inc.
• Release date: Nov 14, 2017
• ISBN: 9789712733635

Book preview

Chapter 1

Pedro is Legitimate and Single

LETTER 1

Pedro, a Legitimate Single Person, who is survived by Legitimate Parents

Dear Attorney,

I am a forty-year-old bachelor who is in poor health. I live and care for my sixty-year-old parents, Ramon and Clara, as I am their only child. Last year, I won the P200 million lotto. I have no children as I had an operation which frustrated my ability to have children of my own. I do not expect to ever get married as I prefer living with my parents.

I have a long-time lawyer-girlfriend and while she wants to marry me, I am 100% sure I will not marry her or move in with her. My parents do not like her, and they think she is bossy and manipulative. When my girlfriend and I discuss what I should do with my lotto winnings, she talks as if she is a part-owner of my winnings. She also seems to think she is entitled to inherit something when I die. She keeps pestering me to make a Will naming her as the sole beneficiary of everything I own. She says my parents have enough money to take care of themselves.

I fear she may finally wear me down and force or cajole me into making a Will in her favor. Is it possible for me to make a Will giving her everything and not giving anything to my parents?

Pedro

Dear Pedro,

Your girlfriend is wrong in thinking that by making a Will, you can give everything you own to her when you die. She should know this if she is a lawyer. She may, however, be expecting your parents to die before you, in which case, she may legally be made the sole beneficiary to your entire Estate if you make a Will.

You have two options—the first is to make a Will, and the second is not to make a Will and do nothing about your Estate.

If You Make a Will:

When a valid Will is made, we call this testate succession, and the person who made the Will is called the testator.

To give you a brief background, there are certain heirs for whom the law reserves a portion of your net Estate (the Estate remaining after paying all the taxes and liabilities). These heirs are called the compulsory or forced heirs. The portion which is reserved for forced heirs is called the legitime or reserved share (Reserved Share).

One group of forced heirs for whom the law sets aside a Reserved Share is your legitimate parents, Ramon and Clara.¹

Your legitimate parents, as a group, have a Reserved Share of 1/2 of your net Estate.² This 1/2 Reserved Share is equally divided between Ramon and Clara with each receiving a Reserved Share of 1/4 of your net Estate (1/2 divided by 2).³ If only one parent survives when you die, let us say only Clara is left, the whole 1/2 Reserved Share is given in its entirety to Clara alone.⁴

The remaining 1/2 part is called the Free Portion. The Free Portion is the share over which you have free disposal.⁵ The law will not impose or tell you how to dispose of it. You can give it to anyone you want. You can give the whole of the Free Portion to your parents. In fact, you can divide the Free Portion between your parents and your lawyer-girlfriend in any proportion, or even give the whole Free Portion to your girlfriend. You can give the Free Portion to your Church, best friend, teacher, favorite charity or to anyone else.

In short, you can do anything you want with the Free Portion, except that you cannot give it to certain persons who are prohibited by law from receiving a donation or inheritance. See p. 565.

However, if you want to give the Free Portion to anyone other than your parents, Ramon and Clara, you must make a Will. Even if you make a Will, the 1/2 Reserved Share set aside for your legitimate parents, Ramon and Clara, is fixed and may not be reduced. This is why you cannot give your whole net Estate to your lawyer-girlfriend. You can see from the pie below that the Free Portion, over which you have control, is only 1/2 of your net Estate. This is the only portion you can dispose of.

If You Do Nothing

On the other hand, if you do nothing, the law will distribute and divide your net Estate based on certain rules when you die. When a person dies without a Will, it is called intestate succession.

If you do not make a Will and assuming both your parents are alive when you die, they will inherit your whole net Estate.⁶ If you do not make a Will, the only persons who will inherit from you, are your legitimate parents, Ramon and Clara. They will divide your whole net Estate into two, with each getting a 1/2 intestate share.⁷ On the other hand, if Ramon dies ahead of you and only Clara is left, Clara will inherit your whole net Estate. Your lawyer-girlfriend would get nothing. Your net Estate will be distributed like this:

You can see from the pie that there is no Free Portion for you to distribute because when there is no Will, there is no Free Portion to speak of. The law distributes everything in intestate succession.

This is precisely why your girlfriend wants you to make a Will. If you do nothing, she will, in turn, get nothing from you. Accordingly, if you do not want to give her a portion of your net Estate, I suggest you do nothing and the law will take care of things when you die.

To summarize, if you do nothing and die without a Will, only your legitimate parents will inherit your entire net Estate and in equal shares. If you want to change the equal sharing of your parents, you must make a Will. If you want to give a portion of your net Estate to your girlfriend or anyone else, you must make a Will naming your girlfriend or such person as your heir to the Free Portion. If you do not make a Will, your girlfriend or such other person will get nothing. However, even if you make a Will, you cannot reduce the 1/2 Reserved Shares set aside for your legitimate parents, Ramon and Clara, which is fixed. You can only distribute the Free Portion, which in this case is 1/2 of your net Estate.

The comparison below will better illustrate to you the differences between making a Will and not making a Will.

If you do not make a Will and in the event both your parents die before you, assuming you have no children, descendants, ascendants, siblings, nephews or nieces as the same are not listed in this Letter, your net Estate will go to the nearest legitimate relatives up to the 5th degree of relationship in the collateral line.⁸ The legitimate relatives closest in degree to you will inherit. If there are no legitimate relatives up to the 5th degree of relationship in the collateral line, your net Estate will go to the Philippine Government.⁹

Simply put, collateral relatives are relatives who are NOT your direct ascendants or descendants. Going upwards, your parents, grandparents, great-grandparents, etc., are your direct ascendants. Going downwards, your children, grandchildren, great-grandchildren, etc., are your direct descendants.

Your brothers and sisters are neither your direct ascendants nor descendants; they are your collateral relatives within the 2nd degree. Collateral relatives are related to you because you share a common ancestor with them. For example, your brothers and sisters (2nd degree), nephews and nieces (3rd degree) are your collateral relatives because you share the same ancestor, your parents (who are also the grandparents of your nephews and nieces).

Examples of collateral relatives within the 4th degree are your first cousins, grandnephews and grandnieces, and great-uncles and great-aunts. Examples of collateral relatives within the 5th degree of relationship in the collateral line are great-grandnephews and great-grandnieces, first cousins once removed (children of your first cousins), and great-granduncles and great-grandaunts.

Accordingly, if you are in fact making a Will (whether or not you are including your lawyer-girlfriend), you may want to allow for the possibility that your parents may die before you, even if you are sickly. I suggest you name an alternate or secondary heir to take the share of your parents should they both die ahead of you.

Hope this helps.

Attorney

LETTER 2

Pedro, a Legitimate Single Person, who is survived by Legally Adopted Child/Children

Dear Attorney,

I am a fifty-five-year-old bachelor. Although I stayed single, several years ago, I went to court and legally adopted a child called Marco from the local orphanage. Marco is all grown up now, and is working and earning very well.

Through the years, I have been lucky in my investments. I now have a very healthy bank account and other substantial assets. My best friend and spiritual advisor, Fr. Manalo has been pressuring me to leave all my properties to my Church as Marco is already of age and no longer needs my financial help.

I don’t feel right not leaving anything to Marco. What are my options on this matter?

Pedro

P.S. I am currently considering legally adopting another abandoned child, a little girl named Maia.

Dear Pedro,

Hmmm … Pressuring you, huh? Someone appears to be more interested in the temporal rather than the spiritual needs of his flock.

First, let me tell you that the suggestion of your spiritual advisor that you give everything to the Church cannot be done. Your gut instinct which told you that there was something wrong about not leaving anything to Marco was correct.

You have two options—the first is to make a Will, and the second is to not make a Will and do nothing with your Estate.

If You Make a Will:

When a valid Will is made, we call this testate succession, and the person who made the Will is called the testator.

To give you a brief background, there are certain heirs for whom the law reserves a portion of your net Estate (the Estate remaining after paying all the taxes and liabilities). These heirs are called the compulsory or forced heirs. The portion which is reserved for forced heirs is called the legitime or reserved share (Reserved Share).

Your legally adopted child Marco, if you only have one, or if you proceed with your second adoption, Marco and Maia, are your forced heirs for whom the law sets aside a Reserved Share.¹⁰

In the eyes of the law, legally adopted children have the same status and rights to inherit as legitimate children.¹¹

It is important to emphasize that the legally adopted child is related only to the Adopting Parent, that is you, Pedro, and not to your relatives. Also, the relationship between you and your legally adopted child is a legitimate one only because it is made such by the law. In this letter, I will refer to your legally adopted children as legally adopted/legitimate children so that you know they have the same status.

Your legally adopted/legitimate children have a Reserved Share as a group of 1/2 of your net Estate.¹² If you only have one legally adopted/legitimate child, the whole 1/2 Reserved Share is set aside for that one child. If you have two legally adopted/legitimate children, the 1/2 Reserved Share is divided into two with each child getting 1/4 (1/2 divided by 2). If you have three legally adopted/legitimate children, the 1/2 Reserved Share is divided into three; and so forth.

The remaining 1/2 part is called the Free Portion. The Free Portion is the part over which you, the testator, have free disposal.¹³ The law will not impose or tell you how to dispose of it. You can do anything you want with it.

In addition to their Reserved Shares, you can give the whole or part of the Free Portion to Marco and Maia in any proportion. You can exclude Marco and/or Maia from the Free Portion. You can give the whole of the Free Portion to your Church, to Fr. Manalo, to your best friend, teacher, favorite charity or to anyone else.

In short, you can do anything you want with the Free Portion, except that you cannot give it to certain persons who are prohibited by law from receiving a donation or inheritance. See p. 565.

But in order to give the Free Portion to your Church (or anyone else other than Marco and Maia), you must make a Will. The portion which you can give away can be seen from the following pies which indicate how much of your net Estate is the Free Portion. Even if you make a Will, the 1/2 Reserved Share set aside for your legally adopted/legitimate children is fixed and may not be reduced. This is why you cannot give your whole net Estate to your Church, even if a Will is made. If you make a Will, your net Estate would look like this:

If You Do Nothing

On the other hand, if you do nothing, the law will distribute and divide your net Estate based on certain rules when you die. When a person dies without a Will, it is called intestate succession.

If you do not make a Will, and Marco is your only legally adopted/legitimate child, Marco will inherit your whole net Estate. On the other hand, if you have two legally adopted/legitimate children, Marco and Maia, they will divide your net Estate equally into two parts, with each receiving a 1/2 intestate share of your net Estate.¹⁴

Your net Estate would be distributed like this:

You can see from the pies that there is no Free Portion for you to distribute because when there is no Will, there is no Free Portion to speak of. The law distributes everything in intestate succession.

To summarize, if you do nothing and die without a Will, only your legally adopted/legitimate children will inherit your entire net Estate and in equal shares. If you want to change the equal sharing of your legally adopted/legitimate children, you must make a Will. If you want to give a portion of your net Estate to the Church or Fr. Manalo, you must make a Will naming them as heirs to the Free Portion. Even if you make a Will, you cannot reduce the 1/2 Reserved Share set aside for your legally adopted children, Marco and Maia, which is fixed. You can only give the Church or any other person a share from the Free Portion which, in this case, is 1/2 of your net Estate.

The comparison below will better illustrate to you the differences between making a Will and not making a Will.

Hope this helps.

Attorney

LETTER 3

Pedro, a Legitimate Single Person, who is survived by Ampon

Dear Attorney,

I am a sixty-five-year-old bachelor. I have been very successful in my business selling furniture to restaurants and hotels. I made ampon a little two-year-old girl named Amparo whom I truly adore. She makes my day brighter.

I love Amparo as if she were my own child. I want her to inherit everything I own. I am not in good health and I would like to make sure Amparo gets all my properties when I die. I have no children, my parents and grandparents are all dead, and I am an only child. All I have is Amparo. Please advise me on how to protect Amparo.

Pedro

Dear Pedro

You are right to be worried about your ampon, Amparo.

You have two options—the first is to make a Will, and the second is not to make a Will and to do nothing with your Estate.

If You Make a Will:

When a valid Will is made, we call this testate succession, and the person who made the Will is called the testator.

To give you a brief background, there are certain heirs for whom the law reserves a portion of your net Estate (the Estate remaining after paying all the taxes and liabilities). These heirs are called the compulsory or forced heirs. The portion which is reserved for forced heirs is called the legitime or reserved share (Reserved Share).

In the vernacular, the ampon is a child who is taken in but who has not been formally adopted through a legal court process. There is no court decree granting adoption. It is a purely informal situation.

Under the law, your ampon, Amparo, is a stranger to you. Amparo is not related to you even if you love her like your own child. She is considered a stranger. Because she is a stranger, the law does not reserve any share of your net Estate for her.

In your particular case as a single person with no parents, ascendants, children, or descendants, you have no forced heir. With respect to you, the law does not reserve any portion of your net Estate for anyone.

Your whole net Estate constitutes the Free Portion or is freely disposable.¹⁵

The Free Portion is the part over which you have free disposal. The law will not impose or tell you how to dispose of your whole net Estate. You can do anything you want with your net Estate/Free Portion.¹⁶ You can give the whole of the Free Portion to Amparo. You can also give a part to Amparo and a part to your Church, best friend, teacher, favorite charity or to anyone else.

In short, you can do anything you want with the Free Portion, except that you cannot give it to certain persons who are prohibited by law from receiving donations or inheritance. See p. 565.

As I have stated earlier, Amparo, your ampon, is not your forced heir. She is deemed a stranger to you, as much of a stranger to your Estate as your neighbor or your barangay captain.

You have the power to give Amparo 100% (or less) of your net Estate. You can give it all to her. However, in order to give Amparo all or part of your net Estate, you must make a Will naming her your sole heir.

If You Do Nothing:

If you do nothing, the law will distribute and divide your net Estate based on certain rules of sharing when you die. When a person dies without a Will, it is called intestate succession.

If you do not make a Will, and assuming you have no children, descendants, ascendants, legitimate siblings, and legitimate nephews and nieces as they are not listed in this letter, the only persons who will inherit from you are your closest legitimate relatives up to the 5th degree of relationship in the collateral line, if there are any. If there are none, the Philippine government will inherit your net Estate.¹⁷Your ampon, Amparo, would get nothing.

Your net Estate would be distributed like this:

Simply put, collateral relatives are relatives who are NOT your direct ascendants or descendants. Going upwards, your parents, grandparents, great-grandparents, etc., are your direct ascendants. Going downwards, your children, grandchildren, great-grandchildren, etc., are your direct descendants.

Your brothers and sisters are neither your direct ascendants nor descendants; they are your collateral relatives within the 2nd degree. Collateral relatives are related to you because you share a common ancestor with them. For example, your brothers and sisters (2nd degree), and nephews and nieces (3rd degree) are your collateral relatives because you share the same ancestor, your parents (who are also the grandparents of your nephews and nieces).

Examples of collateral relatives within the 4th degree are your first cousins, grandnephews and grandnieces, and great-uncles and great-aunts. Examples of relatives within the 5th degree of relationship in the collateral line are great-grandnephews and great-grandnieces, first cousins once removed (children of your first cousins), and great-granduncles and great-grandaunts.

You can see from the above that there is no Free Portion for you to distribute because when there is no Will, there is no Free Portion to speak of. The law distributes everything in intestate succession.

To summarize, if you do nothing and die without a Will, your net Estate will be given to your closest legitimate relatives up to the 5th degree of relationship in the collateral line and if there are no such relatives, it will go to the Philippine Government. If you want to give your entire net Estate to Amparo, it is imperative that you make a Will YESTERDAY naming her as your sole heir. If you do nothing, Amparo will get nothing.

You can of course explore other alternatives to making a Will, one of which is to legally adopt Amparo. If you legally adopt Amparo, she will inherit from your net Estate as a forced heir and if you do not make a Will, she will inherit your entire net Estate.

The comparison below will better illustrate to you the differences between making a Will and not making a Will.

Hope this helps.

Attorney

LETTER 4

Pedro, a Legitimate Single Person, who is survived by Illegitimate Child/Children

Dear Attorney,

I am a fifty-five-year-old bachelor. When I was younger, I had a girlfriend with whom I had two illegitimate children, Xavier and Xandra. My girlfriend died after giving birth to Xandra. We never had a chance to get married.

I love my two children, so I want to make sure they are well taken care of. I was told that because they are illegitimate, they will get nothing from me. Is this true?

Pedro

Dear Pedro,

No, the information that Xavier and Xandra will get nothing from you because of their illegitimate status is wrong. However, in order for Xavier and Xandra to inherit from you, their relationship to you as their father must be proven.

You have two options regarding your two illegitimate children, Xavier and Xandra—the first is to make a Will, and the second is not to make a Will and do nothing about your Estate.

If You Make a Will:

When a valid Will is made, we call this testate succession, and the person who made the Will is called the testator.

To give you a brief background, there are certain heirs for whom the law reserves a portion of your net Estate (the Estate remaining after paying all the taxes and liabilities). These heirs are called the compulsory or forced heirs. The portion which is reserved for forced heirs is called the legitime or reserved share (Reserved Share).

One group of forced heirs for whom the law sets aside a Reserved Share is your illegitimate children, Xavier and Xandra.¹⁸

Note that in all cases of illegitimate children, their relationship to you must be proven.¹⁹ An illegitimate child is related only to the father or mother who recognized him.²⁰

Illegitimate children are ranked lower than legitimate children. However, in your particular situation, where there are only illegitimate children (no parents, ascendants, legitimate/legally adopted children, descendants, or a Spouse), there is no difference in their sharing.

Your illegitimate children, as a group, have a Reserved Share of 1/2 of your net Estate.²¹ If you have only one illegitimate child, the whole 1/2 Reserved Share would go to that one child. As you have two illegitimate children, Xavier and Xandra, the 1/2 Reserved Share is divided into two for the two illegitimate children, so each of them will receive 1/4 (1/2 divided by 2). If you have three illegitimate children, the 1/2 Reserved Share would be divided into three and each of them will receive 1/6 (1/2 divided by 3), and so forth.

This is how your net Estate would look like if you made a Will:

The remaining 1/2 part is the Free Portion. The Free Portion is the share over which you have free disposal.²² The law will not impose or tell you how to dispose of it. You can give it to anyone you want and in any proportion. You can give the whole of the Free Portion to Xavier and Xandra or you can give only to Xavier and exclude Xandra. You can give the whole Free Portion to your Church, girlfriend, best friend, favorite charity or to anyone else.

In short, you can do anything you want with the Free Portion except that you cannot give it to certain persons who are prohibited by law from receiving a donation or inheritance. See p. 565.

However, if you give the 1/2 Free Portion to anyone other than Xavier and Xandra, or change the equal division between Xavier and Xandra, you must make a Will. Even if you make a Will, you cannot reduce the 1/2 Reserved Share set aside for the illegitimate children which is fixed.

If You Do Nothing

On the other hand, if you do nothing, the law will distribute and divide your net Estate based on certain rules when you die. When a person dies without a Will, it is called intestate succession.

If you do not make a Will, Xavier and Xandra will inherit your entire net Estate.²³ Your net Estate will be equally divided into two, with each of Xavier and Xandra getting 1/2 of your net Estate. Parenthetically, if you only have one illegitimate child, the entire net Estate would go to that one child. If you had three illegitimate children, your net Estate would be divided into three parts.

This is how your net Estate would look like if you do not make a Will.

You can see from the pies that there is no Free Portion for you to distribute because when there is no Will, there is no Free Portion to speak of. The law distributes everything in intestate succession.

To summarize, if you do nothing and die without a Will, only your illegitimate children will inherit your entire net Estate in equal shares. If you want to change the sharing of your illegitimate children, you must make a Will. If you want to give a part of your net Estate to persons other than Xavier and Xandra, you must also make a Will naming these persons as your heirs to the Free Portion. And even if you make a Will, you cannot reduce the 1/2 Reserved Share set aside for the illegitimate children, which is fixed. You can only give from the Free Portion, which is 1/2 of your net Estate.

The succeeding comparison will illustrate the differences between making a Will and not making a Will.

Hope this helps.

Attorney

LETTER 5

Pedro, a Legitimate Single Person, who is survived by Legitimate Grandparents

Dear Attorney,

I am a twenty-eight-year-old bachelor who recently won the P250 million lotto. Both my parents died in an airplane accident. I have no children, siblings, nephews or nieces. However, I do have my grandparents, who are still healthy and strong.

I was raised by both my legitimate maternal and paternal grandparents. During my grade school and high school years, I lived with my paternal grandparents, John and Marsha. Then, when I went to college, I lived with my maternal grandparents, Pepe and Pilar. I love my grandparents dearly.

I have just been told that I am very ill and I am not expected to live very long, or in fact, to outlive my grandparents. I would like to make sure that my grandparents will inherit my fortune. I was told that if I have no children, my fortune would go to the Philippine Government. Is this true?

Pedro

Dear Pedro,

First let me congratulate you on winning the lotto! I, too, have bought many tickets. Unfortunately, despite entering the birthdays of all the saints in every order in an attempt to curry favor with the heavens, I have not won a single peso. Such is my luck that I am relegated to writing free advice in this book. But now, let me get to the serious stuff.

You have two options regarding your legitimate grandparents—the first is to make a Will, and the second is not to make a Will and do nothing about your Estate.

If You Make a Will

When a valid Will is made, we call this testate succession, and the person who makes the Will is called the testator.

To give you a brief background, there are certain heirs for whom the law reserves a portion of your net Estate (the Estate remaining after paying all the taxes and liabilities). These heirs are called the compulsory or forced heirs. The portion which is reserved for forced heirs is called the legitime or reserved share (Reserved Share).

One group of forced heirs for whom the law sets aside a Reserved Share is your legitimate ascendants. In your particular case, your legitimate ascendants are your grandparents John, Marsha, Pepe, and Pilar.²⁴ As you have no children or descendants, and both your parents are dead, your legitimate grandparents are your closest ascendants.

John, Marsha, Pepe and Pilar are your forced heirs. Without having to lift a finger, the law reserves a portion of your net Estate for them.

As a group, John, Marsha, Pepe, and Pilar, your closest legitimate ascendants, have a Reserved Share of 1/2 of your net Estate.

As you are well aware, every person has two pairs of grandparents, a grandfather and grandmother from the paternal line (parents of your father) and the grandfather and grandmother from the maternal line (parents of your mother).

The 1/2 Reserved Share set aside for your grandparents as a group is further divided into two for the paternal line and the maternal line. The paternal line will get 1/4 (1/2 divided by 2), while the maternal line will receive the other 1/4 portion. Thus, each pair of grandparents has an equal Reserved Share of 1/4.²⁵

If only Marsha survives in the paternal line, she will take the entire 1/4 Reserved Share for the paternal line. Similarly, if Pilar is the only surviving grandparent in the maternal line, Pilar will take the whole 1/4 share pertaining to the maternal line.

On the other hand, if only one grandparent survives among all your four legitimate grandparents, let us say Pilar is the only surviving grandparent, Pilar takes the whole 1/2 Reserved Share set aside for the ascendants.²⁶ If all your legitimate grandparents survive, this is how your net Estate will look like:

On the other hand, if only Marsha survives from the paternal line and only Pilar survives in the maternal line (as women statistically live longer than men), your net Estate would look like the pie below:

As you can see from all the pies above, the remaining 1/2 part is the Free Portion. The Free Portion is the share over which you have free disposal.²⁷ The law will not impose or tell you how to dispose of it. You can do anything you want with it. You can give the whole of the Free Portion to John, Marsha, Pepe and Pilar in any proportion. Or you can exclude John, Marsha, Pepe and Pilar from the Free Portion. You can give the whole of the Free Portion to your Church, girlfriend, best friend, teacher, favorite charity, or to anyone else.

In short, you can do anything you want with the Free Portion, except that you cannot give it to certain persons who are prohibited by law from receiving a donation or inheritance. See p. 565.

But in order to give the Free Portion to your Church, girlfriend, or to anyone else, you must make a Will. Also, if you would like your grandparents to share in the Free Portion, but not equally, you must also make a Will. However, even if you make a Will, the 1/2 Reserved Share set aside for your legitimate grandparents, John (1/8), Marsha (1/8), Pepe (1/8), and Pilar (1/8), is fixed and may not be reduced. You can only dispose of the Free Portion, which in this case is 1/2 or 50% of your net Estate.

If You Do Nothing

On the other hand, if you do nothing, the law will distribute and divide your net Estate based on certain rules when you die. When a person dies without a Will, it is called intestate succession.

If you do not make a Will, your net Estate will be divided into two lines: the paternal line and the maternal line. Each line will be further divided into two. The paternal line will get 1/2 of your net Estate and the maternal line the other 1/2.²⁸

The 1/2 share of the paternal line would be divided into two, between the paternal grandfather and paternal grandmother, and each would get a 1/4 share. The same will be done for the maternal line. If only Marsha survives in the paternal line, she will get the whole 1/2 share intended for the paternal line. If Pilar is the only survivor in the maternal line, she will get the whole 1/2 share belonging to the maternal line. If only Pilar survives among all four grandparents, Pilar will succeed to your entire net Estate.

The pies on the next page will illustrate the different scenarios when some of the grandparents die ahead of you.

You can see from the above that there is no Free Portion for you to distribute because when there is no Will, there is no Free Portion to speak of. The law distributes everything in intestate succession. If your intention is to give equally to your four grandparents, then you do not need to make a Will. The law will distribute your net Estate in the same manner.

To summarize, if you do nothing and die without a Will, only your legitimate grandparents will inherit your entire net Estate and in equal shares. If you want to change the equal sharing among your grandparents you must make a Will. If you want to give a part of your net Estate to persons other than your grandparents, you must make a Will naming these persons as your heirs to the Free Portion. And even if you make a Will, you cannot reduce the 1/2 Reserved Share set aside for your legitimate grandparents, which is fixed. You can only give out of the Free Portion, which in this case is 1/2 of your net Estate.

The comparison below will better illustrate to you the differences between making a Will and not making a Will.

If you are making a Will, you may want to allow for the possibility that all your grandparents may die before you, which is the usual case. I suggest you name an alternate or secondary heir in the Will to take the share of your grandparents should they all die ahead of you. If all your grandparents die ahead of you and you have no children, descendants, legitimate ascendants, legitimate siblings, nephews and nieces, the nearest legitimate relatives up to the 5th degree of relationship in the collateral line will inherit your net Estate, and if there are none, the Philippine Government will inherit your net Estate.

Examples of collateral relatives within the 4th degree are your first cousins, grandnephews and grandnieces, great-uncles and great-aunts. Examples of collateral relatives within the 5th degree of relationship in the collateral line are great-grandnephews and great-grandnieces, first cousins once removed (children of your first cousins), great-granduncles and great-grandaunts.

Hope this helps.

Attorney

LETTER 6

Pedro, a Legitimate Single Person, who is survived by Brothers and/or Sisters, legitimate and illegitimate

Dear Attorney,

I am a fifty-year-old bachelor. I never married because the love of my life became a nun! My only relatives are my legitimate brothers and sister, Sandro, Marga, Antonio and Matteo. I also have illegitimate siblings, Gino and Nicole, who are the children of my father with his mistress.

My eldest brother Sandro has been really kind to me. He helped raise me when my parents died. He gave me my startup funds to start my online business, which has made me a millionaire. My sister Marga has also been good to me and she acted like my second mother when I was growing up. On the other hand, my two other brothers, Antonio and Matteo, deeply resent me because I am very wealthy. Even when we were small, they were cruel to me and they bullied me. Antonio and Matteo would put lizards inside my sandwich and watch me eat it. They also tortured my dog and locked me up in the closet when I had a final examination. Clearly those two are psychos.

Gino and Nicole, my illegitimate siblings, have always been nice to me. Although I know that they do not have much money, they have never resented me or even asked me for a loan! I hate to admit it but I love them more than I love my own full blood brothers, Antonio and Matteo!

I want to leave my fortune to my legitimate brother and sister Sandro and Marga, and to my illegitimate siblings, Gino and Nicole. I want to give Marga more as she is a widow and she has ten children to care for. Antonio and Matteo told me that I have no choice but to leave my fortune to all four of my legitimate siblings in equal parts because they are all my legitimate siblings. The two psychos said I couldn’t leave anything to Gino and Nicole because they are illegitimate. Is this true?

Pedro

Dear Pedro,

First, let me commiserate with you on your misfortune on having two such awful brothers. Did you know that people who delight in torturing animals tend to become serial killers? Don’t worry, it is payback time.

You have two options with respect to the distribution of your Estate when you die—the first is to make a Will, and the second is not to make a Will and do nothing about your Estate.

If You Make a Will:

When a valid Will is made, we call this testate succession, and the person who made the Will is called the testator.

To give you a brief background, there are certain heirs for whom the law reserves a portion of your net Estate (the Estate remaining after paying all the taxes and liabilities). These heirs are called the compulsory or forced heirs. The portion which is reserved for forced heirs is called the legitime or reserved share (Reserved Share).

In your particular case, Sandro, Marga, Antonio, Matteo, Gino and Nicole are your siblings. They are your collateral relatives.

Simply put, collateral relatives are relatives who are NOT your direct ascendants or descendants. Going upwards, your parents, grandparents, great-grandparents, etc., are your direct ascendants. Going downwards, your children, grandchildren, great-grandchildren, etc., are your direct descendants.

Your brothers and sisters are neither your direct ascendants nor descendants; they are your collateral relatives. Collateral relatives are related to you because you share a common ancestor with them. For example, your brothers and sisters, nephews and nieces are your collateral relatives because you share the same ancestor, your parents (who are also the grandparents of your nephews and nieces).

While brothers and sisters are collateral relatives, they are not forced heirs. The law does not reserve any portion of your net Estate for your siblings. Your whole net Estate may be freely disposed by you without any restraints or Reserved Shares.

You have no legal obligation to leave your siblings any share of your net Estate. This is how your net Estate would look like if you made a Will:

As 100% of your net Estate is freely disposable by you, you can give it to anyone you like. The law will not impose or tell you how to dispose of it. You can give it to anyone you want. You can divide your net Estate 30-40 between your legitimate siblings, Sandro and Marga, and 15-15 for your illegitimate siblings, Gino and Nicole. You can totally omit Antonio and Matteo from your net Estate even though they are your legitimate siblings because they are not forced heirs. In fact you do not even need to give to any of your siblings at all! You can give the Free Portion to your Church, girlfriend, best friend, favorite charity, or to anyone else.

In short you can do anything you want with your net Estate except that you cannot give it to certain persons who are prohibited by law from receiving a donation or inheritance. See p. 565.

However, in order to do all the foregoing, including omitting your psycho brothers Antonio and Matteo, you must make a Will giving your net Estate to persons other than Antonio and Matteo.

If You Do Nothing

On the other hand, if you do nothing, the law will distribute and divide your net Estate based on certain rules when you die. When a person dies without a Will, it is called intestate succession.

If you do not make a Will, your net Estate would be equally divided among your four legitimate siblings only, including your psycho brothers Antonio and Matteo.²⁹

If a Will is not made, all four legitimate siblings will get an equal intestate share of your net Estate. So Antonio and Matteo will get an intestate share equal to the intestate share of your beloved legitimate siblings, Sandro and Marga.

If you do not make a Will, your illegitimate siblings Gino and Nicole will get nothing from your net Estate.

Relatives from the illegitimate line are barred from inheriting by intestate succession (where a Will is not made), from their relatives from the legitimate line.

Art. 992 of the Civil Code prohibits illegitimate relatives (e.g., Gino and Nicole are illegitimate), from inheriting by intestate succession, from legitimate relatives (e.g., you, Pedro, are legitimate), and vice versa:

Art. 992. An illegitimate child has no right to inherit ab intestato (by intestate succession) from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

You can see from the above pie that there is no Free Portion for you to distribute because when there is no Will, there is no Free Portion to speak of. The law distributes everything in intestate succession.

To summarize, if you do nothing and die without a Will, only your legitimate siblings will inherit your entire net Estate and in equal shares. However, if you want to omit your two psycho legitimate siblings or to give to some, but not all, of your legitimate siblings, you must make a Will. If you want to give a portion of your net Estate to your illegitimate siblings, you must also make a Will naming them as your heirs to your net Estate. If you do not make a Will, your illegitimate siblings, Gino and Nicole, will get nothing and your psycho siblings will get something.

Parenthetically, if you do not make a Will and your only surviving relatives are your illegitimate siblings (no legitimate siblings), your whole net Estate will be given to your closest legitimate relatives up to the 5th degree of relationship in the collateral line, and if there are none surviving, then to the Philippine Government.³⁰

Examples of collateral relatives within the 4th degree are your first cousins, grandnephews and grandnieces, and great-uncles and great-aunts. Examples of collateral relatives within the 5th degree of relationship in the collateral line are great-grandnephews and great-grandnieces, first cousins once removed (children of your first cousins), and great-granduncles and great-grandaunts.

The comparison below will better illustrate to you the differences between making a Will and not making a Will.

Hope this helps.

Attorney

LETTER 7

Pedro, a Legitimate Single Person, who is survived by Nephews and/or Nieces, legitimate and illegitimate

Dear Attorney,

I am a sixty-five-year-old bachelor. I had four legitimate siblings, Sandro, Marga, Antonio and Matteo. All my legitimate siblings died but my deceased legitimate brother Sandro is survived by his legitimate children Sarah, Sotero and Sally. Antonio, who is also deceased, never got married although he was a notorious playboy. He died leaving an illegitimate child, Axa.

Attorney, my father was a bit of a playboy too, and had an affair with his old girlfriend. They had a love child or an anak sa labas, my brother Gino. Gino unfortunately also passed away at a young age. He is survived by his illegitimate daughter Gigi.

I am very close to all my nephews and nieces from both the legitimate and illegitimate line. They frequently come to visit me, bringing me food, watching over me when I am sick, and always making sure to invite me to all the important family gatherings. In fact, all of us spend Christmas and New Year together at my house. They make sure I am never lonely.

I am now rather long in the tooth and I know I am already in the pre-departure area at this time of my life. In my family, we die in our middle to late sixties, so my expiration date is in the near horizon. I want to be prepared.

I want to give all of my nieces and nephews, whether legitimate or illegitimate, an equal share of my net Estate, as I love them all equally.

My niece Sarah (Sandro’s daughter), is a law student and is at the top of her class. While I love her dearly, I know she is a bit manipulative and scheming. Nonetheless, she is my flesh and blood. When I broached the subject of making a Will several days ago, Sarah said that there is no need for me to make a Will because in any case, everyone will inherit equally among the nephews and nieces, whether they are legitimate or illegitimate.

Because of the known flaws in her character, I would like to seek your confirmatory advice.

Pedro

Dear Pedro,

First, let me address your niece Sarah. She is either not as smart as you think she is, or she is on the opposite end of the spectrum, very intelligent but, unfortunately, dishonest and manipulative indeed. If she has already taken Wills and Succession, I would be very wary of her and the advice she gives to you regarding your net Estate. Her advice is misleading.

As your niece, Sarah, has a financial interest in your Estate. I advise you not to consult with her on this matter as she has a conflict of interest which does not appear to bother her.

You have two options—the first is to make a Will, and the second is not to make a Will and do nothing about your Estate.

If You Make a Will:

When a valid Will is made, we call this testate succession, and the person who made the Will is called the testator.

To give you a brief background, there are certain heirs for whom the law reserves a portion of your net Estate (the Estate remaining after paying all the taxes and liabilities). These heirs are called the compulsory or forced heirs. The portion which is reserved for forced heirs is called the legitime or reserved share (Reserved Share).

In your particular case, you only have your nephews and nieces who are your collateral relatives.

Simply put, collateral relatives are relatives who are NOT your direct ascendants or descendants. Going upwards, your parents, grandparents, great-grandparents, etc., are your direct ascendants. Going downwards, your children, grandchildren, great-grandchildren, etc., are your direct descendants.

Your nephews and nieces are neither your direct ascendants or descendants; they are your collateral relatives. Collateral relatives are related to you because you share a common ancestor with them. For example, your brothers, sisters, nephews and nieces are your collateral relatives because you share the same ancestor, your parents (who are also the grandparents of your nephews and nieces).

Your nieces and nephews, whether legitimate or illegitimate, are not forced heirs for whom the law sets aside a Reserved Share. Because they are not your forced heirs, your net Estate is 100% Free Portion or freely disposable.

If you make a Will, you could distribute 100% of your net Estate in accordance with your wishes. You have no restrictions whatsoever and you are not required to give any share to any relative, niece or nephew, legitimate or illegitimate.

As 100% of your net Estate is freely disposable, you can give it to anyone you like. Anyone. You can divide it equally among all your legitimate and illegitimate nieces and nephews, and in any proportion. You can select who among them you want to give to. You can totally omit them and give it to your Church, girlfriend, best friend, teacher, favorite charity or to anyone else. You have free disposition of 100% of your net Estate.

In short, you can give your net Estate to anyone you like. To anyone and in any proportion, provided they are not among those prohibited to receive a donation or inheritance. See p. 565.

However, in order to give your net Estate to persons other than Sarah, Sotero, and Sally (your nephew and nieces from the legitimate line who will inherit if you do not make a Will), you must make a Will naming these persons as heirs to your net Estate. If you would like to give to all your nephews and nieces, legitimate or illegitimate, you must also make a Will.

If You Do Nothing

On the other hand, if you do nothing, the law will distribute and divide your net Estate based on certain rules when you die. When a person dies without a Will, it is called intestate succession.

If you do not make a Will, your net Estate will be equally divided among your surviving nieces and nephews from the legitimate line only. So only Sally, Sarah, and Sotero, the legitimate children of Sandro, will inherit from you. Your illegitimate nephew and niece Axa and Gigi will get nothing.³¹

If only legitimate nephews and nieces survive, then your net Estate would be equally divided among the legitimate nephews and nieces.

Where only children of brothers and sisters survive, they inherit equally among themselves.³² However, when the legitimate nieces and/or nephews inherit together with their legitimate uncles and aunts, they only take the share which their deceased parent would have inherited.

Your net Estate would be divided as indicated below:

Why are Axa and Gigi excluded from your net Estate? They are excluded because Axa and Gigi are your nephew and niece from the illegitimate line.

Art. 992 of the Civil Code prohibits illegitimate relatives (e.g., Axa and Gigi) from inheriting by intestate succession from legitimate relatives (e.g., you, Pedro, are from the legitimate line), and vice versa:

Art. 992. An illegitimate child has no right to inherit ab intestato (by intestate succession) from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

If you do not make a