LEGAL OR INTESTATE
SUCCESSION
When Legal Succession takes place
1.) If a person dies under the following
conditions:
a.) No will
b.) With a void will
c.) With a valid will but it subsequently
lost its validity (ie. Revocation or
the will is ineffective)
2.) When the will does not institute an heir
to, or dispose of all the property belonging to
the testator. In such case, legal succession shall
take place only with respect to the property of
which the testator has not disposed;
3.) If the suspensive condition in the will does
not happen or is not fulfilled, or if the heir dies
before the testator, or repudiates the
inheritance, there being no substitution, and no
right of accretion takes place.
4.) When the heir instituted is incapable of
succeeding, except in cases provided by this
Code.
N.B. Intestacy also takes place:
a.) upon expiration of resolutory term;
b.) happening of resolutory condition.
* Preterition converts a testate proceeding into
an intestate proceeding.
* Who are the intestate heirs?
Ans. (a.) Legitimate and illegitimate relatives
of the deceased
(b.) surviving spouse;
(c.) State
* Can intestate heir be disinherited?
Ans. Yes, if compulsory heir
No, if not compulsory heir but they can
be excluded, expressly or impliedly
Principles for Exclusion of Intestate heir
1.) Compulsory heir cannot be excluded;
2.) State cannot be excluded;
3.) Exclusion of a person does not include his
descendant or other heirs;
4.) Express exclusion of one intestate heir makes
the property go to the heirs of the same
degree, if any; if none, then the heirs of the
next degree.
Some basic principles of Intestate
Succession
* Nearer relatives excludes the farther;
* In general, inheritance is in equal share;
* Direct line is preferred over collateral lines
RELATIONSHIP
* Proximity of relationship is determined by the
number of generations. Each generation forms a
degree.
• Direct line and Collateral line
• Computation of degrees
* Full blood and Half blood relationship defined;
• Accretion in intestate succession, when?
Ans. When there are several relatives of the
same degree and one or some of them are:
a.) Unwilling (repudiates)
b.) incapacitated to succeed
His share shall accrue to the others of the same
degree, save the right of representation when it
should take place (Art. 968).
N.B. Representation takes place only in case of
incapacity but not in repudiation.
* Effect of repudiation:
1.) An heir who repudiates his inheritance
cannot be represented by his heirs;
2.) His share will go to his relatives in the
same degree by accretion;
3.) If all relatives of the same degree will
repudiate their inheritance, their share
will go their relatives in the following
degree. They will inherit in their own right
REPRESENTATION
When representation exist:
a.) predecease
b.) incapacity
c.) disinheritance
Note: In intestate succession, representation
covers all that the person represented would
have inherited.
In testate succession, representation
covers only the legitime. There is no right of
representation on the free portion.
* Other Rules on Representation:
1.) An adopted child cannot represent his
adopter;
2.) Representative must be capable of
succeeding;
3.) Representative inherits not from the one
he represents but from the decedent.
4.) If several representatives of one heir, they
will inherit per stirpes.
5.) Renouncer cannot be represented.
* If the surviving heirs are ALL nephews and
nieces as there are no more surviving brother or
sister of the decedent then they will all inherit in
equal share or per capita. (Art. 975).
* A renouncer cannot be represented by his heir
from the estate of his parents. But, a renouncer
can still inherit by representation from his
grandfather if his father predecease the former
(Art. 976 and 977).
ORDER OF INTESTATE SUCCESSION
1.) descendant of direct line
- Legitimate children may concur with the
Illegitimate children and surviving spouse
2.) Legitimate parents and ascendants;
3.) Illegitimate Children
4.) Surviving spouse
5.) Collateral relatives up to the fifth degree
6.) State
Descending direct line:
* Inheritance of children – in their own right
* Inheritance of children and their nephews and
nieces whose parents predecease the
decedent shall inherit in their own right and
the latter by representation.
* Inheritance of grandchildren - when all their
parents are dead is by representation. When
all parents repudiates then per capita.
* Inheritance by nephews and nieces – If no
more brothers or sisters of the decedent,
they inherit per capita and in their own right.
* Estate of the adopted child – who will inherit?
(Art. 894 has already been amended by the
Sec. 18 of the Domestic Adoption Law)
* Reserva Adoptal – This has already been
abolished
Ascending Direct Line:
* In default of legitimate children and
descendants, the parents shall inherit from him,
to the exclusion of the collateral relatives.
* In default of parents, the ascendants in the
nearest degree (grandparents). They will divide
the inheritance per capita
* There is no right of representation in the
ascending line.
Illegitimate Children:
- In the absence of legitimate descendants or
ascendants, the illegitimate children shall
succeed to the entire estate (Art. 988).
- If an Illegitimate child concurs with the
descendants of another illegitimate child, the
former will inherit in his own right while the
latter by representation.The descendant of the
illegitimate child here could be legitimate or
illegitimate.
- Illegitimate children concurring with parents
of the decedent, they will divide the estate
equally.
*Illegitimacy Barrier Rule:
- An illegitimate child cannot inherit ab
intestato from the legitimate children and
relatives of his father or mother (who are both
legitimate) nor shall they inherit from him. But,
if his parents are also illegitimate like him, he
can inherit from his grandparents.
Surviving Spouse
* Inheritance of surviving spouse
- ALL if she survive alone
- If surviving with brothers and sisters of the
decedent, they share ½ and ½ .
* Share of the surviving spouse if she concurs
with the legitimate children
* If widow survives with parents of decedent,
their share is ½ and ½.
* If widow survives with illegitimate children,
their share is also ½ and ½.
• If widow survives with legitimate children and
illegitimate children, her share is equal to
that of one legitimate child while illegitimate
child gets ½ of LC share.
* Legitimate Parents - 1/2
Surviving Spouse - 1/4
Illegitimate children - 1/4
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* Surviving Spouse - 1/2
Brothers and sisters - 1/2
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* In case of legal separation and the surviving
spouse is the cause thereof, she inherits nothing
Collateral Relatives
* If there are no descendants, ascendants,
illegitimate children, or surviving spouse, the
collateral relatives shall succeed.
• If brothers and sisters survives with nephews
and nieces, the former shall inherit per capita
while the nephews per stirpes.
* Full blood brothers and sisters gets double
that of the half blood brothers and sisters.
* All half blood brothers and sisters whether in
the father or mother side shall inherit in equal
share.
* Should there be no brother or sisters whether
of the full or half blood, the other collateral
blood relatives shall inherit.
* The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship.
State
* If no other relative survives, the State will
inherit.
Escheat – Succession by the State of properties
considered ownerless for lack of
legal heirs.
• A petition shall be filed in the RTC of the
province where the deceased last resided
How estate inherited by the state is distributed
(Art. 1013)
Personal property – shall be assigned to the
Municipality or city where the deceased
last resided.
Real property - In the municipality where the
property is located.
• In case an heir appears within 5 years from
the time it was delivered to the State, he will
be entitled to its posession
PROVISION COMMON TO TESTATE
AND INTESTATE SUCCESSIONS
Right of Accretion
Accretion- When two or more persons are called
to the same inheritance and one:
a.) renounces
b.) incapacitated
c.) predeceased the testator
his share will be added to that of his
co-heirs.
* Accretion in Testamentary Succession:
a.) Two or more persons are called to inherit
on the same portion, pro indiviso;
b.) One of them predecease, repudiate or
is incapacitated.
* Rules: a.) If earmarked – no accretion
b.) If not earmarked - there can be an
accretion
* The heir to whom the portion goes by the
right of accretion take it in the same proportion
that they inherit (Art. 1019).
* There can be no accretion on the legitime. It
only apply to the free portion.
* In testamentary succession, when accretion
does not take place, the vacant portion shall
pass to the legal heirs of the testator.
CAPACITY TO SUCCEED
Meaning: Ability to inherit and retain property
obtained mortis causa.
* Persons not incapacitated by law may succeed
by will or ab intestato.
* Provisions relating to incapacity by will are
equally applicable to intestate succession.
* Kinds of incapacity to succeed
a.) Absolute – Cannot inherit from anybody
regardless of circumstances.
b.) Relative -- Cannot inherit only from some
persons or properties, but can
inherit from others.
* To be capacitated to inherit one must be
already living, or at least conceived at the time
succession is opened. Disposition may also be
made in favor of the State or other entities.
* Kinds of Absolute Incapacity:
1.) Individuals or corporations not permitted
by law to inherit (Art. 1027 no. 6)
2.) Those who lack juridical personality as in a
case of abortive infant under Art. 41 of NCC.
* Kinds of Relative Incapacity:
1.) because of possible influence (Art. 1027)
2.) public policy and morality (Art. 1028)
3.) because of unworthiness (Art. 1032)
Incapacity Because of Possible Undue Influence
1.) Priest who heard the confession or
minister of gospel who extended spiritual aid to
testator during his last illness;
2.) Relatives of such priest or minister within
the fourth degree, the church, order chapter,
organization to which the priest belong;
3.) Guardian with respect to his ward before
the final account of guardianship is approved;
4.) Any attesting witness to the will or their
spouse, parents or children;
5.) Any physician, surgeon, nurse, etc. who
took care of the testator during his last illness;
6.) Individuals, association and corporations
not permitted by law to inherit.
Incapacity Because of Public Morality
1.) Those made between persons guilty of
adultery or concubinage at the time of the
making of the will;
2.) Those made between persons found guilty
of the same criminal offense, in consideration
thereof;
3.) Those made to a public officer or his wife,
descendants and ascendants, by reason of his
office.
* Rule in Disposition for prayers and pious works
couched in general terms:
- 50% goes to the church and the other 50%
goes to the State.
Rule in Disposition in Favor of the Poor:
- If in general, it refers to the poor in the
community where the testator resides;
- Determination to be made by persons
appointed by the testator
- If no one is appointed, then by the executor;
- If none, by the Justice of the Peace, Mayor
and the Municipal Teasurer by a majority
vote thereof.
N.B.
In all cases, the approval of the court is
necessary.
* Disposition in favor of a disqualified person is
VOID even if made under the guise of an
onerous contract, or through an intermediary.
Incapacity by Reason of Unworthiness
1.) Parents who abandoned their children or
induced their daughter to lead a corrupt ot
immoral life, or attempted against their virtue;
2.) A person convicted of an attempt against
the life of the testator etc.;
3.) A person who accused the testator of a
crime which carries an imprisonment of six years
or more, if accusation is found to be groundless;
4.) An heir of full age who have knowledge of
the violent death of the testator and failed to
report it to the authorities within a month,
unless the authority have already taken action,
this prohibition shall not apply if there is no
obligation to make an accusation;
5.) Any person convicted of adultery or
concubinage with the spouse of the testator;
6.) Any person who by fraud, violence,
intimidation or undue influence should cause
the testator to make a will or to change one
already made;
7.) Any person who by the same means
prevents another from making a will, or from
revoking one already made, or who supplants,
conceals, or alters the latter will;
8.) Any person who falsifies or forges a
supposed will of the decedent.
* The causes of unworthiness shall be without
effect if testator has knowledge thereof of at the
time he made the will OR after and he condones
it.
* Capacity of a person to inherit is determined
at the time of the testator’s death.
* Incapacitated compulsory heir can be
represented.
* Alienation of hereditary property by the
excluded heir, before judicial order of exclusion,
are valid as to third person who acted in good
faith, but co-heirs have the right to recover
damages from the said excluded heir.
* An excluded heir is entitled to indemnity for
any expenses incurred for the preservation of
the hereditary property;
* Incapacitated heir who disregard the
prohibition and entered into the possession of
the hereditary property is obliged to return it
with its accession.
* Capacity to succeed is governed by the
national law of the decedent.
* Action to declare incapacity prescibes in
five (5) years from possession of the said heir;
ACCEPTANCE & REPUDIATION
* Acceptance and Repudiation of inheritance is a
voluntary act.
* Acceptance and repudiation must be done
after the death of the decedent
* Acceptance of inheritance left to a minor or
insane shall be done by the parents or
guardians. They cannot however repudiate the
same without judicial order.
* Rules if legatee or devisee is:
a.) Corporation – by lawful representative
b.) Public Official Establishment – by the
government
* Married woman can repudiate an inheritance
without the consent of the husband.
* Acceptance may be express or implied
* Implied Acceptance:
a.) If the heir sells, donate, or assigns the
inheritance;
b.) If he renounces it even gratuitously ;
c.) If he renounces it for a price in favor of all
his co-heirs indiscriminately.
* Repudiation of inheritance must be done
EXPRESSLY. It shall be done in a public or
authentic instrument or by petition in court.
* Right of an unpaid creditor of an heir who
renounces his inheritance.
* When an heir should die without having
accepted or repudiated the inheritance,
representation will take place.
* When the heir repudiates his being a testate
heir, he is also presumed to have repudiated his
legitime or being an intestate heir, but not the
other way around.
* Acceptance or Repudiation once made is
irevocable, except when there is vitiated
consent.
* When acceptance or repudiation must be
made?
Ans. Within thirty (30) days from issuance by
the court of an order for the disribution of the
estate in accordance with the Rules of Court
EXECUTORS AND ADMINISTRATORS
* An executor of a will cannot officially act
before his appointment is confirmed by the
court. In the meantime, the court may appoint
an administrator pendente lite or a special
administrator.
* The surviving spouse is given preference in the
appointment of a regular administrator
* Order of Preference for Regular Administrator:
a.) Surviving spouse
b.) next of kin
c.) Creditors
d.) Any other person as the court may select.
* If the assets of the decedent is insolvent, the
creditors shall be paid in accordance with the
rules on Preference of Credit.
COLLATION
* Applies only to compulsory heirs
* If a compulsory heir acquires by donation or
gratuitous title any property from the decedent
inter vivos, he shall return (collate) the value of
said property to the estate for purposes of
determining the total value of the estate and
their legitime. This donation shall be treated as
advance inheritance.
* When collation will not take place:
a.) If the donor expressly provides. This
means that the donor does not want it to be
charged to the legitime.
b.) Donation shall be charged NOT to the
legitime but to the free portion if the donee
should repudiate the inheritance.
* Property left by will is not deemed subject to
collation if the testator has not otherwise
provided. But the legitime must not be impaired
• Grandchildren who inherit by representation
from the estate of their grandfather, is obliged
to collate whatever their father may have
received by way of donation from his father
during his lifetime. They shall also collate what
they received by way donation from their
grandfather.
• Parents are not obliged to bring to collation
what their children received from their
grandparents by way of donation.
* Donation to the spouse of the child is not
collationable. But, if the donation is to both of
them, the ½ share of the child is subject to
collation.
* Expenses for support, education, and medical
attendance is not collationable.
* Any amount paid by the parents for the debt
of their child shall be brought to collation.
* Wedding gifts by parents and ascendants shall
not be collated except insofar as they may
exceed one-tenth of the sum which is disposable
by will (Art. 1070).
* If the donors are the father and mother and
one of them dies, only one-half shall collated to
the estate of the deceased parent and the other
half will be collated later on when the other
parent dies.
* The donees share in the inheritance shall be
reduced by an amount equal to that already
received by him.
* Fruits and interest on the thing donated shall
not be included in the collation except from the
day on which the succession is opened.
* When the donation is revoked for being
inofficious, the thing donated must be returned
(collated) and the donee must be reimbursed
by his co-heirs for the expenses he incurred for
the preservation of the property donated to
him. The donee who collates in kind must also
be reimbursed fro the improvements he made
which may have increased the value of the thing
donated.
* Any question regarding collation shall not
interrupt the distribution of the estate, provided
adequate security is provided (Art. 1077)
PARTITION AND DISTRIBUTION
* Before actual partition by the co-heirs, they
will be governed by co-ownership, subject to the
payment of the debts.
* Partition may be judicial or extra-judicial. It
may also be done during the lifetime of the
testator (inter vivos) or after his death.
* Extrajudicial partition may be made if there
are no debts and every heir is of age.
* Every co-owner has the right to demand
partition of the estate unless the testator should
have expressly forbidden its partition, in which
case the period of prohibition shall nor exceed
twenty years.
* Even though forbidden by the testator, the
co-ownership will be terminated when any of
the causes for dissolution of partnership takes
place, or when the court finds compelling
reasons that division should be ordered. Also, by
mutual agreement of the heirs co-ownership can
be terminated.
* Voluntary heirs can demand partition except
when some conditions have been imposed on
his institution, he cannot demand partition until
the conditions has been fulfilled.
* If the thing is indivisible, or its division will
impair its value, it may be adjudicated to one of
the heirs, provided he will pay the others the
excess in cash.
* Legal Redemption by co-heir:
Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or
all of the co-heirs may redeem it within one
month from the time they were notified in
writing of the sale by the vendor (Art. 1088).
* When the land covered by only one title is
subdivided, the title shall be delivered to the
heir having the largest interest, and authentic
copies be furnished to the other heirs.
EFFECTS OF PARTITION
* Partition confers upon each heir the exclusive
ownership of the property adjudicated to him.
* After partition, co-heirs will warrant the title
to, and the quality of, each property adjudicated
• Prescription of warranty – ten years
• Warranty of debts
RESCISSION AND NULLITY OF PARTITION
* Grounds for rescission is the same as that of
the annulment of contract.
* An action for partition does not prescribe for
as long as one or some of the heirs do not hold
the property in question under an adverse title.
Thus, if an extrajudicial settlement is executed
by some heirs to the exclusion of others stating
that they are the sole heirs, and as a result
thereof they were able to secure a title, the
excluded heirs must bring the action to annul
the partition within four (4) years from the
discovery of the fraud or from the registration of
the deed of partition because registration is
constructive notice to the whole world.
* Partition may be rescinded on account of
lesion, which means that an heir received things
whose value is less, by at least one fourth, than
the share to which he is entitled.
* The action for rescission on account of lesion
prescribes after four years from the time
partition was made.
* The heir that is sued has the option to:
a.) indemnify the plaintiff;
b.) consent to a new partition
* Preterition of objects in the partition does not
give rise to rescission.
• Preterition of a compulsory heir in the
partition shall not be a ground for rescission
unless there is bad faith or fraud on the part
of the other heirs who participated in the
partition. They will be proportionately obliged
to pay the person omitted the share which
belong to him.
• Inclusion of a person believed to be an heir,
but who is not, shall void the partition only
with respect to such person.
* THANK YOU *
