Q. Hi Atty Wong, Good day. Please advise what is the best way to do when I am planning to give my land to my children given the following conditions:
1. Documents available are transfer certificate of title and deed of absolute sale.
2. The said property was given by my grandparents to me and my brother (deceased) when we were minors.
3. My name is misspelled as Cirsten instead of Kirsten.
4. I am now married hence I have now a different surname than the name indicated in the documents. Hope for your help. Thank you. Kaye
ANS: Hello Ms. Kaye, It’s not clear in your letter about the details of the documents in your possession. You mentioned that you have the Transfer Certificate of Title (TCT)and the Deed of Absolute sale. My understanding of this narrative is that the TCT is under your name and that the same was transferred under your name by virtue of the the Deed of Absolute Sale when you were still minor .
If this is so, this means that the property although was given to you by your grandparents and your brother by way of gratuitous title, was actually sold and conveyed to you in fee simple based on the Deed of Sale document.
You also mentioned that your name was misspelled as Cirsten instead of “Kirsten”. Although it is not clear in what documents does this show. In the TCT or the Absolute Sale?
Assuming again that the “Kirsten” is reflected in the TCT and/or the Deed of Absolute Sale, then there could be a need for you to file a petition for the correction of entries in the title with the Regional Trial Court(RTC).However, if the in the Deed of Absolute sale it is clear that your name is correct and the error was made by the office of the Register of Deeds, you can just file a petition with the said office for the correction of the name appearing in the title.
There are two ways of conveying or transferring the said property to your children. You can give it to them by way of Donation or by Selling the said property to them. It’s really a judgment call on your part. If you got married with your husband prior to the effectivity of the Family Code in August 3,1988, your property relations is covered by the Civil Code of the Philippines, and in the absence of pre-nuptial agreement, the property relations is governed by Conjugal Partnership of Gains. However, this property covered by the TCT could not be considered as conjugal property but your paraphernal property or property excluded by law from Conjugal ownership.
On the other hand, if you got married after the effectivity of the Family Code, and there is no pre-nuptial agreement between you and your husband, this property could be considered as part of the absolute Community Property between you and your husband, especially so that by virtue of the Deed of Absolute Sale, this property is deemed a part of your absolute community could not considered as excluded property as you have purchased and acquired it by virtue of the Deed of Sale, notwithstanding that the same was acquired prior to your marriage or actually by gratuitous title having it transferred to you without any payment or consideration .
It could had been different where the basis in the transfer of the property under your name was made by inheritance or donation from your ascendants which could be considered as exclusion to the Absolute Community property of the spouses. As such any sale or disposition of the same requires the written marital consent of the spouse.
On the other hand and assuming further, that in the Transfer Certificate of Title, the name of your deceased brother is also indicated, this means that the said property is co-owned by you and your deceased brother. If your deceased brother has a family or surviving heirs(wife or children), then you need to secure the conformity of the surviving heirs of your deceased brother. If your deceased brother has no other heir except you, then if you have to execute an Affidavit of Sole Adjudication for the settlement of his estate and pay the required estate and other taxes due to the government. For this purpose, you have to confer with your lawyer for the necessary paper works.
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