Q. My brother, a retired Navy man married a Filipina in the late sixties. They moved to Bulan in the eighties and bought a small parcel of land and built a home.
My brother told me since he was not a Filipino citizen, he could not own land in the Philippines. Thus the land and house were put in his wife’s name.
My brother’s wife died 3 years ago in Bulan. My brother moved back to the US and left the house in his wife’s sister’s care with money to care for it. A family squabble has ensued over who should live in the house.
The sister has since died and my brother’s niece, who lives in the house, now talked to an attorney in Bulan and was told by the attorney in their community that my brother did own the house because of succession of ownership to the spouse.
He wants to GIVE the house and land to his niece, but is unsure of how to do that without traveling to the Philippines consulate in Chicago.
He lives in Southern Illinois and can’t find an attorney who is familiar with quick deed procedure in a foreign land. Thanks for your response. TP
ANS:
Hello Tim! As general rule, foreigners are not allowed to own land in the Philippines, this prohibition does not apply to a foreigner owning land by virtue of the laws on legal or intestate succession.
The lawyer in Bulan in holding that your brother is now the legal owner of the wife’s house and lot is partly correct on the assumption that his deceased wife has no other heir and left no will.
However, when it comes to the sharing of the inheritance there seems to be an issue here.
More particularly, wherein if the deceased wife had no other surviving relative , then he can be considered as a sole heir and therefore he gets all the estate(house and lot under the name of the wife), pursuant to Art.995, par. 1, Civil Code of the Philippines.
Unfortunately, the facts of the case do not support the above. It appears that when the wife of your brother died three (3) years ago, you mentioned that the brother left and settled back to the States and left the house under the care of the wife’s sisters and with money to care for it.
Thus, it appears that your brother is also survived with his wife’s sisters and niece(s)/nephew(s). If this is the case, then the said relatives are also entitled to the estate of the wife. This means that your brother as the surviving spouse is entitled to ½ of the estate and surviving siblings of the deceased wife( and/or in their default) their children who are either nephews or nieces are entitled to the other ½ of the estate, pursuant to Art.1001 and the second par. of Art. 994 of the Civil Code of the Philippines, as amended.
Now, following above sharing of the inheritance, what your brother can freely give or dispose is only to the extent of his ½ shares of the estate to whomsoever he wants or pleases including to the niece in particularly that is referred to your letter.
Your brother can dispose of his share even if he is outside the Philippines, as he is not living and settled in Illinois. This can be done by assigning or conveying your brother’s interest/rights of his inheritance in favor of this particular niece, either by donation or by sale.
If the deceased wife left no will, the parties or heirs of the deceased including your brother as the surviving spouse, may execute the so called Extrajudicial Settlement of the Estate. In this document, your brother can just simply state that either he sells or donate his share to whomsoever person he wishes, including to this particularly niece he preferred.
However, if the parties cannot agree in the manner of partition for whatever reason, then the settlement of the estate shall become judicial and it will be court of law that will determine and adjudicate the shares of the heirs.
As mentioned above, your brother can just execute such document referred to above and have it duly notarized or acknowledged before the Philippine Consulate officers in Illinois. Once, the said document is notarized (with red ribbon by the Philippine Consulate), the same shall be recognized and be used for the legal purpose by which it was executed.
In the settlement of estate whether in Extrajudicial or Judicial form, the parties should also consider the tax implications in the disposition and transfer of properties in question under the names of the particular heir or transferee. These are taxes in the form of Estate tax, Documentary Stamps, Transfer tax etc. If the disposition of the estate involves a sale, waiver or donation, the corresponding taxes thereto are also applicable. (Capital gains, donor’s taxed.).
Once the Extrajudicial Settlement is executed by the heirs, a legal notice thereof shall publish in the newspaper of general circulation in the Philippines for three (3) consecutive weeks. This is followed by the payment of taxes mentioned above .The Bureau of Internal Revenue (BIR) shall issue a corresponding Certificate authorizing Registration (CAR) before the Register of Deeds and the Assessor’s Office, registers the same and issues the corresponding new title(s) and Tax Declaration Certificate(s) to the transferee(s).
Kindly note that under the law, the payment of estate tax must be paid within the prescribed period. Failing to do this, the taxing authorities impose sur-charges of 25% on the tax due and an interest thereof in the range of 19% – 21% per annum. Thus, the more delay in the payment of the required taxes, means adding up the costs for every year or period of delay.
It is strongly recommended, that you confer with a lawyer who is knowledgeable in the documentation processes, forms and procedures in Philippine jurisdiction for further professional assistance.
Looking forward you’ll find the above in order. Thank you.
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