Q. Hi po, may nabili po akong lupa kaso yung Certificate Authorizing Registration(CAR) ay di pa po narerelease. Ganito po yon. -Nabili po ni seller ung lupa sa subdivision year 1990 na dalaga pa siya. -Nakumpleto niya pong bayaran year 1995 ung lupa. -Kinasal po siya 1993 -Namatay po yung asawa 2011 -Nakuha na niya po yung titulo ng lupa 2005 dahil nagkaproblema po ung developer at may ari ng subdivision kaya matagal naprocess -Ang titulo po nakapangalan pa sa pagkadalaga po niya -May 4 po siyang anak (3 legal age at 1 minor). Tanong ko po kung subject to estate tax po ba yun? Need po ba ng extrajudicial settlement? (nagtanong po kasi ako sa Register of Deeds( RD) pagkakuha ko po ng CTC of title, sabi sa akin di na daw po need kahit agreement or SPA nalang na pumapayag ibenta ng mga anak ang lupa pero need daw po un sabi ng BIR kaya SPA lang po ang meron ako. Need din po ba ng barangay clearance ng dead husband, total land holdings at 2011 tax declaration ng husband? Yan daw po ang sabi ng BIR kaya nakahold po ung CAR.Thank you po and God bless! Ms E. Batas PINOY Corner By: ATTY. ROGELIO N. WONG “Laws relating to family rights and duties,or to the status, condition and legal capacity of persons are binding upon Filipino citizens, even though living abroad.” (Article 15 Civil Code of the Philippines) 2 ANS: Hello Ms. E, Kung walang marriage settlement/pre-nuptial agreement na napag kasunduan ng mag asawa prior to their marriage, the property relations of the spouse is governed by the Absolute Community Property regime which provides that “all property owned by the spouses at the time of the celebration of the marriage and thereafter, shall consist or form part of the the community property of the spouse(Art.91-Family Code). Except the following properties that are excluded from the Community property : “Art. 92 of the Family Code, The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property; (2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property; (3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property. ” Ayon sa kwento mo and considering that the marriage was celebrated after the effectivity of the Family Code(August 3,1988) and in the absence of PreNuptial/Marriage Settlement Agreement that was executed by the spouse prior to their marriage, their property relations is governed by the regime of Absolute Community Property. Which means that “all property owned by the spouses at the time of the celebration of the marriage and thereafter, shall consist or form part of the the community property of the spouse(Art.91-Family Code). Hence, given the above situation, even if the property was acquired prior to the marriage(although fully paid in 1995 after the marriage in 1993) the land in question does not fall within the ambit of the Exclusion under Art.92 aforesaid, the said property is deemed part of the community property of the spouses. Being so, upon the death of the other spouse, half of the interest or part of the land that was brought into the marriage is considered as the ESTATE of the deceased spouse and subject to Extrajudicial Settlement of Estate and the payment of the Estate Tax. The Estate is then divide to the surviving compulsory heirs of the deceased, as follows: ½ of the estate will go the surviving spouse as her share from the community property. The other half shall be divided equally by the surviving spouse with the four(4) children equally. Hence, Contrary to the information given to you by the Office of the Register of Deeds, kailangan talaga and Extrajudicial Settlement of the Estate, upang malaman ng BIR kung magkano ba ang dapat bayaran ng estate tax hinggil sa 3 nasabing property. Unless the Estate tax due is paid, the Bureau of Internal Revenue(BIR) will not issue the Certificate Authorizing the Registration(CAR) of the property with the Office of the Register of Deeds. Moreover, in certain cases, the certificate of land holdings may also be required especially where the property in question is agricultural land or the transferee is former natural-born Filipino citizen and intends to acquire lands in the Philippines, among others. The situation could had been different where the marriage took effect prior to the effectivity of the Family Code and/or in the Marriage settlement of the spouses agreed that their property relations is governed by the Conjugal Property regime. Under the law on conjugal partnership regime, property acquired by the spouse prior to the marriage shall be excluded from their conjugal properties and as such the spouse can dispose their exclusive properties with out the consent of the other and in the event of death, the exclusive property does not form part of the estate of the decedent spouse and not subject to estate settlement and the payment of estate tax. Looking forward you’ll find the above in order and welcome to the Batas Pinoy Global Community. Disclaimer: Batas Pinoy Corner Not Legal opinion: Material placed on this corner is for the purpose of providing information only. It is not intended as practice of law or legal services. Although the writer believes this information to be accurate at the time it is first provided or as relayed by the person asking or soliciting the information from the writer. Such circumstances or understanding of the facts as conveyed to the writer by the sender may not actually reflect the ultimate facts or circumstances earlier represented and as understood by the writer. This writer makes no representation, express or implied, as to the accuracy, completeness or timeliness of the information provided in this writing. The content provided by Batas Pinoy Corner is not meant to be a substitute for legal opinion. Always consult your lawyer or other legal professional for legal advice as regards to the information obtained in this column. * * * Readers who may have legal concerns affecting their persons, property, rights,title and related interest concerning Philippine laws and jurisdiction, are welcome to e-mail their query either in English or Pilipino in plain, concise and orderly presentation of facts in order to avoid vagueness and misunderstanding of your stories, for appropriate comments to: attyrw@gmail.com .
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