Q. Atty Wong I am here again to solicit your guidance on my concerns.
My parents died intestate leaving behind a property to the five of us siblings.
My two brothers died too intestate both leaving behind three heirs each.
The three of us in Canada would like to sell the property but the heirs of my two brothers just kept mum.
My question is can we have the property judicially partitioned and sell our 3/5 shares leaving to them this 2/5 shares.
Can this be possible even without an extrajudicial settlement of ownership of the property the heirs of our two deceased brothers do not want to sell the property as they are staying in the property. Thank you for your advice .FT.
ANS: Hello FT . Kindly take a note that as a rule, co-heirs and co-owners of the estate of their deceased parents, have all the right to sell, assign and dispose their respective share or interest of the estate whether the same was partitioned or not.
However, third party buyers, especially who are not co-heirs, would rather prefer and be comfortable in dealing with the property that has been put in order, to avoid the hassles and inconveniences that could result in the future, like the payment of the corresponding estate tax ,interest/penalty charges, and other incidental taxes and fees, as well as the subdivision and the partition issues and the like which could lead to litigation should the other co-owners cannot agree on the manner how the property is going to be subdivided .
Now, if there is or are buyers who are willing to buy the collective 3/5 shares that you and your other siblings owned in the estate, pending partition or the settlement of the same, such transaction is legal and have binding effect.
The judicial partition you have in mind per your letter , is only applicable in the co-ownership of real properties owned in common by a number of individuals whose respective names are already on title as co-owners thereof. Under this situation of co-ownership, it is the right of any co-owner to demand at any time, the partition of the property owned in common by them .
However in the case of an unsettled estate owned in common by the heirs, the appropriate course of action should efforts to have the estate settled and subdivided Extra-judicially amongst the heirs failed, then the only recourse of any heir(s) is to initiate legal action in the court of law to have the estate settled and partitioned judicially.
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