Chapter 2: BASIC CONCEPTS OF

SUCCESSION

Succession
As earlier defined, succession is a 3. Successors. Heirs, devisees and
mode of acquisition by virtue of which the legatees are all successors. An heir is
property, rights and obligations to the extent a person called to the succession
of the value of the inheritance, of a person are either by the provision of a will or by
transmitted through his death to another or operation of law; if by will, they are
others either by his will or by operation of called voluntary heirs; if by operation
law. The rights to the succession are of law, legal or intestate heirs.
transmitted from the moment of death of the Devisees and legatees are persons to
decedent. whom gifts of real property and
personal property respectively, are
KINDS OF SUCCESSION given by virtue of a will.
1. Testamentary or testate - is that
which results from the designation of 4. Acceptance. The acceptance of an
an heir, made in a will executed in the inheritance may be express or tacit.
form prescribed by law. An express acceptance may be made
2. Legal or intestate - is that effected in a public or private document. A
by operation of law since the tacit acceptance is one resulting from
decedent did not execute a will. acts by which the intention to accept
3. Mixed - is that effected partly by will is necessarily implied, or which one
and partly by operation of law. would have no right to do except in
the capacity of an heir.
ELEMENTS OF SUCCESSION
1. Death of the decedent. Decedent is An heir may accept or repudiate an
the general term applied to the person inheritance. The acceptance or
whose property is transmitted through repudiation of the inheritance is an
succession, whether or not he left a act which is purely voluntary and
will. If he left a will, he is also called free. The effects of the acceptance or
the testator or testatrix. repudiation shall always retroact to
the moment of the death of the
2. Inheritance. Inheritance includes all decedent. Any person having the free
the property, rights and obligations of disposal of his property may accept
a person which are not extinguished or repudiate an inheritance.
by his death. The inheritance of a
person includes not only the property Executors and Administrators
and the transmissible rights and An executor is a person appointed by a
obligations existing at the time of his testator to carry out the directions and
death, but also those which have requests in his will, and to dispose of the
accrued thereto since the opening of property according to his testamentary
the succession. A personal right, such provisions after his death. An administrator is
as a license to practice law, cannot be a person appointed by the court to administer
inherited. Devise is a testamentary the assets and liabilities of a decedent. He is
disposition of real estate while legacy usually a relative of the decedent who has
is a gift or will of personal property. come forward and applied for the position.
bequest by will of personal property.
 Chapter 2: BASIC CONCEPTS OF
SUCCESSION

collecting a decedent's estate,

All matters relating to the appointment, liquidating These activities are carried out by
powers and duties of executors and the executor or administrator of the estate,
administrators and concerning the usually under the supervision of the probate
administration of estates of deceased persons court or other court of appropriate
shall be governed by the Rules of Court. jurisdiction.

Testamentary Succession CAPACITY AND INTENT TO MAKE A

WILL
Wills All persons who are not expressly
A person may make a legal declaration prohibited by law may make a will. Persons
before his death regarding how he wants his of either sex under eighteen years of age,
property transferred after his death. This which is the age of majority, cannot make a
declaration is known as a will. If a person will. Although a child under the age of
dies leaving a will, the person is said to have majority may own property, he, as a minor,
died testate, a status known as testacy. does not have the legal capacity to make
contracts, hence he cannot acquire and control
A will is an act whereby a person is property independently.
permitted, with the formalities prescribed by
law, to control to a certain degree the In order to make a will, it is essential
disposition of his estate to take effect after his that the testator be of sound mind at the time
death. The making of a will is a strictly of its execution. To be of sound mind, it is not
personal act; it cannot be left in whole or in necessary that the testator be in full
part to the discretion of a third person, or possession of all his reasoning faculties, or
accomplished through the instrumentality of that his mind be wholly unbroken,
an agent or attorney. unimpaired, or unshattered by disease, injury
or other cause. It shall be sufficient if the
The testator may entrust to a third person testator was able at the time of making the
the distribution of specific property or sums will to know the nature of the estate to be
of money that he may leave in general to disposed of, the proper objects of his bounty,
specified classes or causes, and also the and the character of the testamentary act.
designation of the persons, institutions or
establishments to which such property or The law presumes that every person
sums of money are to be given or applied. is of sound mind, in the absence of proof to
the contrary. The burden of proof that the
A codicil is an instrument that amends testator was not of sound mind at the time of
(i.e., changes, modifies, or supplements) the making his dispositions is on the person who
of a will. A codicil must be executed with the opposes the probate of the will; but if the
same formalities as a will, but is only required testator, one month, or less, before making his
to have a provision or provisions amending a will was publicly known to be insane, the
will. person who maintains the validity of the will
must prove that the testator made it during a
Probate of a will is the court procedure by lucid interval.
which a will is proved to be valid or invalid.
liabilities, paying necessary taxes (e.g., estate If someone who signs an instrument
tax), and distributing property to heirs. did not know what the instrument said at the
Generally, the probate process involves time of signing, the instrument is not a will.
 Chapter 2: BASIC CONCEPTS OF
SUCCESSION

scientific, cultural, educational, or

The same holds true if one who signs an charitable purposes. All other corporations or
instrument is forced to sign it "against his entities may succeed under a will, unless
will" as the result of duress (i.e., unlawful there is a provision to the contrary in their
pressure to act, such as a gun held to one's charter or the laws of their creation, and
head), the instrument is not a will. In either always subject to the same.
case, not knowing what one is signing or
signing under duress, the requirement FORMS OF WILLS
intention to make a will having legal effect, The formalities required for a written
has not been met. Also because of this witnessed will were designed to limit fraud
requirement, a will or a provision in a will, and abuse by making sure that each will was
may also be invalidated by fraud (i.e. an authentic declaration of its maker's desires.
intentional misrepresentation or Hence, every will must be in writing and
concealment). executed in a language or dialect known to
the testator. Every will, other than a
A married woman may make a will holographic will, must be subscribed at the
without the consent of her husband, and end thereof by the testator himself or by the
without the authority of the court. A married testator's name written by some other person
woman may dispose by will of all her in his presence, and by his express direction,
separate property as well as her share of the and attested and subscribed by three or more
conjugal partnership or absolute community credible witnesses in the presence of the
property. testator and of one another.

CAPACITY TO SUCCEED BY WILL OR Every will must be acknowledged

BY INTESTACY before a notary public by the testator and the
Persons not incapacitated by law may witnesses. The notary public shall not be
succeed by will or ab intestato. In order to be required to retain a copy of the will, or file
capacitated to inherit, the heir, devisee or another with the office of the Clerk of Court.
legatee must be living at the moment the A holographic will is a will written entirely
succession opens, except in case of by the testator with his own hand and not
representation, when it is proper. witnessed or attested. A person may execute a
holographic will which must be entirely
A child already conceived at the time written, dated, and signed by the hand of the
of the death of the decedent is capable of testator himself. It is subject to no other form,
succeeding provided it be born later. For civil and may be made in or out of the Philippines,
purposes, the fetus is considered born if it is and need not be witnessed. The testator's
alive at the time it is completely delivered handwriting is deemed a sufficient assurance
from the mother's womb. However, if the of the will's authenticity.
fetus had an intra-uterine life of less than
seven months, it is not deemed born if it dies In the probate of a holographic will, it
within twenty-four hours after its complete shall be necessary that at least one witness
delivery from the maternal womb. who knows the handwriting and signature of
the testator explicitly declare that the will and
A testamentary disposition may be the signature are in the handwriting of the
made to the State, provinces, municipal testator himself. If the signature of the testator
corporations, private corporations, in a will is contested, at least three of such
organizations, or associations for religious, witnesses shall be required.
 Chapter 2: BASIC CONCEPTS OF
SUCCESSION

A will shall be valid even

The will of an alien who is abroad though it should not contain an institution of
produces effect in the Philippines if made an heir, or such institution should not
with the formalities prescribed by the law of comprise the entire estate, and even though
the place in which he resides, or according to the person so instituted should not accept the
the formalities observed in his country, or in inheritance or should be incapacitated to
conformity with those which the Civil Code succeed. In such cases, the testamentary
prescribes. dispositions made in accordance with law
A will made in the Philippines by a shall be complied with and the remainder of
citizen or subject to another country, which is the estate shall pass to the legal heirs.
executed in accordance with the law of the
country of which he is a citizen or subject, LEGITIME
and which might be proved and allowed by Legitime is that part of the testator's
the law of his own country, shall have the property which he cannot dispose of because
same effect as if executed according to the the law has reserved it for certain heirs who
laws of the Philippines. are, therefore, called compulsory heirs. The
rules on legitime safeguard the rights of the
REVOCATION OF WILLS AND compulsory heirs with respect to their
TESTAMENTARY DISPOSITIONS legitimes. The following are compulsory
A will may be revoked by the testator heirs:
at any time before his death. Any waiver or
restriction of this right is void. 1. Legitimate children and descendants,
with respect to their legitimate
A revocation done outside the parents and ascendants.
Philippines by a person who does not have his 2. In default of the foregoing, legitimate
domicile in this country, is valid when it is parents and ascendants, with respect
done according to the law of the place where to their legitimate children and
the will was made, or according to the law of descendants;
the place in which the testator had his 3. The widow or widower;
domicile at the time; and if the revocation 4. Acknowledged natural children, and
takes place in this country, when it is in natural children by legal fiction;
accordance with the provisions of the Civil 5. Other illegitimate children.
Code.
Subsequent will which do not revoke Compulsory heirs mentioned in nos. 3, 4
the previous ones in an express manner, annul & 5 are not excluded by those in nos. 1 and 2;
only such dispositions in the prior wills as are neither do they exclude one another. For
inconsistent with or contrary to those example, if the decedent is survived by his
contained in the later wills. A revocation of a legitimate child (no. 1) and his widow (no. 3),
will based on a false cause or an illegal cause both of them shall inherit.
is null and void.
One who has no compulsory heirs may
INSTITUTION OF HEIR dispose by will of all his estate or any part of
Institution of an heir is an act by it in favor of any person having capacity to
virtue of which a testator designates in his succeed. One who has compulsory heirs may
will the person or persons who are to succeed dispose of his estate provided he does not
him in his property and transmissible rights contravene the provisions of the Civil Code
and obligations. with regard to the legitime of said heirs.
 Chapter 2: BASIC CONCEPTS OF
SUCCESSION

1/6 (1/2 ÷ 3) of the

Hence, if in the last will of a decedent, the hereditary estate and the surviving
disposition of his estate impairs the legitime spouse gets 1/6 also. Thus, if the
of his compulsory heirs, such will may be hereditary estate is P1,500,000, the
modified accordingly. The table below children share equally in one-half of
explains the legitime of the compulsory heirs: the hereditary estate or P750,000
such that each child gets P250,000;
the surviving spouse gets P250,000
the remaining free portion is
P500,000.

The illegitimate child always gets

one-half the share of a legitimate
A. The legitime of legitimate child. Thus, the free portion varies
children/descendants consists of one- depending on the number of
half of the hereditary estate of the legitimate children/descendants o
father and of the mother. Legitimate whose share the surviving spouse's
parents/ascendants are excluded by and the illegitimate
the presence of the legitimate children/descendants' share depend.
children and descendants. Should
there be only one legitimate B. The legitime of legitimate
child/descendant, one-half of the parents/ascendants consists of one-
hereditary estate goes to the child, half of the hereditary estate of their
one-fourth to the surviving spouse children/descendants. This case
and the other one-fourth is free assumes that their child/descendant
portion. Thus, if the hereditary estate has no legitimate
is P1,500,000, P750,000 goes to the children/descendants, surviving
child, P375,000 to the surviving spouse and illegitimate
spouse, and the other P375,000 is free children/descendants. The free
portion. portion is one-half the hereditary
estate.
If there are two or more legitimate
children/descendants, one-half shall
be divided equally among the
children while the surviving spouse C. The legitime of legitimate
gets the same share as each legitimate parents/ascendants consists of one-
child. Thus, if the hereditary estate is half of the hereditary estate of their
P1,500,000 and there are two children/descendants. The surviving
legitimate children, P375,000 goes to spouse has the right to one- fourth of
the first child, P375,000 to the second the hereditary estate. This case
child, P375,000 to the surviving assumes that their child/descendant
spouse and the remaining P375,000 is has no legitimate
free portion. children/descendants and has no
illegitimate children/descendants. The
If there are three legitimate free portion is one-fourth the
children/descendants, each child gets hereditary estate.
 Chapter 2: BASIC CONCEPTS OF
SUCCESSION

of the testator, it the disinherited

D. If the only survivor is the widow or heir should deny it.
widower, she or he shall be entitled to
one-half of the hereditary estate of The following shall be sufficient causes for
the deceased spouse, and the testator the disinheritance of children and
may freely dispose of the other half. descendants, legitimate as well as
If married in articulo mortis, and illegitimate:
spouses had not been living for 5 1. When a child or descendant has been
years together as husband and wife, found guilty of an attempt against the
and deceased spouse dies within three life of the testator, his or her spouse,
months from the time of marriage, descendants or ascendants;
surviving spouse's share is reduced to
one-third. This limitation does not 2. When a child or descendant has
apply to intestacy and is believed accused the testator of a crime for
inapplicable where the healthy spouse which the law prescribes
is the one who dies within the three- imprisonment for six years or more, if
month period. the accusation has been found
groundless;

E. If the testator leaves illegitimate 3. When a child or descendant has been

children, the surviving spouse shall convicted of adultery or concubinage
be entitled to one-third of the with the spouse of the testator.
hereditary estate of the deceased and
the illegitimate children to another 4. When a child or descendant by fraud,
one-third. The remaining one-third violence, intimidation, or undue
shall be at the free disposal of the influence causes the testator to make
testator. a will or to change one already made.
There are other possible situations aside from
those mentioned but the essence of the law on 5. A refusal without justifiable cause to
legitimes is that the surviving spouse is support the parent or ascendant who
always entitled to his legitime depending on disinherits such child or descendant.
the existence of other compulsory heirs.

Disinheritance 6. Maltreatment of the testator by word

When a person expects or is expected or deed, by the child or descendant;
to inherit, but does not, the person is said to b
disinherited. A compulsory heir may, in 7. When a child or descendant leads a
consequence of disinheritance, be deprived of dishonorable or disgraceful life.
his legitime, for causes expressly stated by
law. Disinheritance can be effected only
through a will wherein the legal cause 8. Conviction of a crime which carries
therefor shall be specified. The burden of with it the penalty of civil
proving the truth of the cause for interdiction.
disinheritance shall rest upon the other heirs
 Chapter 2: BASIC CONCEPTS OF
SUCCESSION

case, legal succession shall

The following shall be sufficient causes for take place only with respect to the
disinheriting a spouse: property of which the testator has not
1. When the spouse has been convicted disposed;
of an attempt against the life of the 3. If the suspensive condition attached
testator, his or her descendants, or to the institution of heir does not
ascendants. happen or is not fulfilled, or if the
heir dies before the testator, or
2. When the spouse has accused the repudiates the inheritance, there being
testator of a crime for which the law no substitution, and no right of
prescribes imprisonment for six years accretion takes place;
or more, and the accusation has been 4. When the heir instituted is incapable
found to be false; of succeeding, except in cases
provided in the Civil Code.
3. When the spouse by fraud, violence,
In default of testamentary heirs, the law
intimidation, or undue influence
vests the inheritance, in accordance with the
causes the testator to make a will or
rules hereinafter set forth, in the legitimate
to change one already made
and illegitimate relatives of the deceased, in
the surviving spouse, and in the State.
4. When the spouse has given cause for
legal separation In every inheritance, the relative nearest
in degree excludes the more distant ones,
saving the right of representation when it
5. When the spouse has given grounds properly takes place.. Proximity of
for the loss of parental authority relationship is determined by the number of
generations. Each generation forms a degree.
6. Unjustifiable refusal to support the Consanguinity is the relation of persons
children or the other spouse. descending from the same stock or common
ancestor. These persons are known as blood
LEGAL OR INTESTATE SUCCESSION relatives, and are said to be related by blood
If a person dies without leaving a or consanguinity. It may be lineal or
will, the person is said to have died intestate, collateral. Lineal consanguinity, which may
a status known as intestacy. In this case, the be descending or ascending, is that which
government provides a default estate plan subsists between persons of whom one is
under which the decedent's estate is disposed. descended in a direct line from the other, as
A person who succeeds in the ownership of between son, father, grandfather, great-
an intestate decedent's property is said to take grandfather, and so upwards in the direct
the property by intestate succession. Legal or ascending line; or between son, grandson,
intestate succession takes place: great-grandson, and so downwards in the
1. If a person dies without a will, or direct descending line. Collateral
with a void will, or one which has consanguinity is that which subsists between
subsequently lost its validity; persons who have the same ancestors, but
2. When the will does not institute an who not descend (or ascend) one from the
heir to, or dispose of all the property other. Thus, father and son are related by
belonging to the testator. In such
 Chapter 2: BASIC CONCEPTS OF
SUCCESSION

between each of the married

lineal consanguinity while uncle and nephew spouse and the kindred of the other.
by collateral consanguinity.
RIGHT OF REPRESENTATION
Representation is a right created by
fiction of law, by virtue of which the
representative is raised to the place and the
degree of the person represented and acquires
the rights which the latter would have if he
were living or if he could have inherited. The
right of representation takes place in the
direct descending line, but never in the
ascending. In the previous illustration, if C
dies ahead of A, C's daughter G and son H
may represent C to the succession when A
dies.
1. In the illustration, C and D are
In the collateral line, it takes place
siblings (sister and brother,
only in favor of the children of brothers or
respectively). Their common parents
sisters, whether they be of the full or half
are A and B.
blood. Full blood relationship is that existing
2. G is the daughter of C and E; J is the
between persons who have the same father
son of D and F.
and the same mother. Half blood relationship
3. M is the son of G and K; N is the
is that existing between persons who have the
daughter of J and L.
same father, but not the same mother, or the
4. A, C, G and M, in that order, are
same mother, but not the same father.
relatives in the descending direct line.
From A to C is one degree; from C to
Order of Intestate Succession
G is another degree and from G to M
1. Descending direct line (legitimate
is another degree.
children/descendants)
5. N, J, D and B, in that order, are
2. Ascending direct line (legitimate
relatives in the ascending direct line.
parents/ascendants),
6. C, G and M are relatives of D, J and
3. Illegitimate children/descendants
N in the collateral line.
4. Surviving spouse
7. G is the niece of D, D is the uncle of
5. Collateral relatives within the 5th
G; J is the nephew of C, C is the aunt
degree
of J.
6. The State
8. H and I are first cousins; they are four
degrees apart, H to C, C to AB, AB to
D and D to l.
9. M and N are second cousins; they are
six degrees apart.
10. Because of G's marriage to K, K
becomes H's brother-in-law, H being
G's brother. They become relatives by
affinity. Affinity is the connection
existing in consequence of a marriage
 Chapter 2: BASIC CONCEPTS OF
SUCCESSION

illegitimate children are

left, the ascendants shall be entitled to
one-half of the inheritance, and the
other half shall be divided between
the surviving spouse and the
Descending Direct Line. illegitimate children so that such
Succession pertains, in the first place, widow or widower shall have one-
to the descending direct line. Legitimate fourth of the estate, and the
children and their descendants succeed the illegitimate children the other fourth.
parents and other ascendants, without f. If a widow or widower survives with
distinction as to sex or age, and even if they illegitimate children, such widow or
should come from different marriages. widower shall be entitled to one-half
a. When legitimate of the inheritance, and the illegitimate
children/descendants survive alone, children or their descendants, whether
the entire estate is to be divided legitimate or illegitimate, to the other
among them in equal shares. Hence, half.
if the hereditary estate is P1,000,000
and there are five legitimate children, Surviving Spouse.
each child gets P200,000. g. In the absence of legitimate
b. When only one legitimate child and descendants and ascendants, and
spouse survive, each is entitled to illegitimate children and their
one-half of the estate. Hence, if the descendants, whether legitimate or
hereditary estate is P1,000,000, the illegitimate, the surviving spouse
child and the spouse get P500,000 shall inherit the entire estate.
each. h. Should brothers and sisters or their
c. When two legitimate children with children survive with the widow or
the spouse survive, each is entitled to widower, the latter shall be entitled to
one-third of the estate. Hence, if the one-half of the inheritance and the
hereditary estate is P1,000,000, each brothers and sisters or their children
of them gets P333,333.33 to the other half.
Ascending Direct Line. Collateral Relatives.
In default of legitimate children and v
i. Should the only survivors be brothers
descendants of the deceased, his parents and and sisters of the full blood they shall
ascendants shall inherit from him, to the inherit in equal shares. Should
exclusion of collateral relatives. brothers and sisters of the full blood
d. When only the legitimate parents survive together with brothers and
survive, the father and mother, if sisters of the half blood, the former
living, shall inherit in equal shares. shall be entitled to a share double that
Should only one of them survive, he of the latter.
or she shall succeed to the entire j. If there are no descendants,
estate of the child. ascendants, illegitimate children, or a
surviving spouse, the collateral
Illegitimate Children. relatives shall succeed to the entire
e. If legitimate ascendants, the surviving estate of the deceased.
spouse, and illegitimate children are
left, the surviving spouse, and
 Chapter 2: BASIC CONCEPTS OF
SUCCESSION

as her share in the estate of the

The State. late Emigdio N. Najera, Sr.
k. In default of persons entitled to
succeed in accordance with law, the
State shall inherit the whole estate.
l.
Illustration. BIR Ruling 078-99, June 17, WHEN DISTRIBUTION OF
1999 HEREDITARY ESTATE TAKES PLACE
Mr. Manuel N. Najera wrote the BIR The executor or judicial administrator
on May 31, 1999 requesting for a ruling has the task of making sure that the estate tax
that the parcel of land with improvements has been paid before he delivers a distributive
classified as conjugal property, the lone share to any party interested in the estate.
property of the late Emigdio N. Najera,
Sr. and Rosalina N. Najera be computed In estate taxation, the gross estate of
separately for estate tax purposes. The citizens and residents include all their
late spouses Emigdio and Rosalina died property wherever situated. This gross estate
intestate on Dec. 1, 1986 and May 16, is allowed deductions under the tax law; the
1997, respectively; both estates have not difference called the net taxable estate is the
filed estate tax returns and paid the estate basis of the estate tax to be imposed. Once the
tax due thereon. A Deed of Extra-Judicial estate is closed and a final distribution of
Settlement was executed by and among assets is made to the beneficiaries, the
the ten (10) surviving heirs each receiving executor transfers the assets to be held in trust
1/10 share. to the trustee.

The BIR explained: The estates of the

spouses should be computed separately
for estate tax purposes. Accordingly, upon
the death of the late Emigdio, only one-
half of the property shall form part of his
gross estate for purposes of determining
his net estate subject to estate tax which is
governed by the statute in force and based
on the value of the property at the time of
his death.

Under Art. 996 of the Civil Code,

upon the death of the decedent, in this
case Emigdio, the share of the surviving
spouse, Rosalina, shall be computed in
relation to the share of their children, i.e.,
the surviving spouse should always be
considered as one child in the division of
the estate. In so doing, the heirs of the
late Rosalina should include her one-half
part of the property, being a pro-indiviso
owner of the property covered by the
Deed of Extra-Judicial Settlement as well