Q. I am in my senior years. Since retiring from government service few years ago, I now live in Canada with my niece. I have properties in the Philippines consisting of a 4-door apartment building. The monthly rental income of this property is the primary source of my income to augment my meager pension from the GSIS.
As I am single and the only relatives left in our family are my niece here in Canada and a nephew in the Philippines. I want to dispose this property to my niece and nephew while I am still alive. At least in this way, I will have control as to who gets what portion of the property to whom I prefer. Rather than left it to my nephew and niece to decide after I am gone. This situation could lead to some kind of misunderstanding later on between them.
On the other hand, while disposing my property to them while I am still around, I want to enjoy fully the income rental of this property for my support and sustained my needs. Through your column, kindly advise me whether my plan is workable and how will it be worked out. Thank you and more power to your column. Gonzalo
ANS:
There are two (2) ways you can do what you have in mine in disposing your property. One is by making a WILL expressly declaring therein what you want to do with your properties after you are gone. To whom and what portion of it should be disposed in the manner you behest. You can have this WILL probated or approved by the Court while you are still alive otherwise the probate will come after the demise of the testator. In case of a WILL therefore, a court action or probate is required. This means legal cost and expense is certain as a lawyer will be hired to probate your WILL before the Court . The chances of your heirs contesting the disposition thereof cannot be ruled out either.
The other way of disposing your property without the need of court action or probate is by Donation Mortis Causa. Under this route, you will actually execute a Deed of Donation in favour of your niece and nephew disposing your property according to your wishes. However such disposition shall only take effect upon the demise of the Donor. Thus, during your life time, even though you have already executed or donated your property to your niece and nephew according to your wishes and preference, you still have full control of your property including the enjoyment of all the attributes of property ownership under the law, such as among others, the enjoyment of its fruits or income.
As to how to go about the foregoing, you may confer with your lawyer for the preparation of the necessary legal documents. You need not be in the Philippines for that specific purpose. The will or Donation Mortis Causa can be prepared in Canada and have it notarized and authenticated by our Consular officers here .
The effect of such Consular imprimatur is such that the documents are deemed to have been executed in the Philippines. And for all legal intents and purposes, in the shall have legal and binding effect in Philippine jurisdiction.