Q. Greetings for serving the Pilipino community through “Batas Pinoy” in the Balita.
I am writing on behalf of my husband whose father passed away in 2008.
His mother also passed away in 2009. My husband has siblings who now live in Canada, except for their youngest brother who prefers to stay in the Philippines. My is now a Canadian Citizen.
My father-in-law left behind certain real properties in the Philippines. An agricultural land in Bicol and a house and lot in Paranaque City. In his Will, he bequeathed the afore-mentioned properties to his children in equal shares.
Unfortunately, in his will, he failed to name his Executor and entrusted the land titles as well as the will to his daughter living in Ontario. Our problem is that this sister has no sense of urgency in having will probated and all these properties remained undistributed and with no certainty as to when this matter will be addressed by this particular sister.
The reluctance if not refusal on the part of this sister to have the will probated in the court in the Philippines, in effect deprives the heirs of the inheritance from the estate.
Through your column, kindly let us know what legal remedies can my husband or his co-heirs can do. Thank you and more power. “Rosalyn”
Ans: Firstly, I wish to stress that your letter did not indicate the citizenship of your father-in-law at the time of his death.
You see, the issue of nationality and residence of the deceased as regards the testamentary and intestate succession in the Philippines are crucial in the disposition and distribution of his estate situated in the Philippines.
Under the doctrine of “lex rei sitae” of Art. 16, par. 1, of the Civil Code of the Philippines, matters governing real estate in the Philippines, in the matters of:
a) Succession rights to real property shall be governed by the national law of the deceased. (Art. 16, par. 2, Civil Code of the Philippines).
b) Capacity to succeed (in inheritance problems) is also governed by the national law of the deceased. ( Art.1039-Civil Code of the Philippines).
Assuming that at the time of death of your father-in-law, he was a still a Filipino citizen, but failed in his WILL to appoint his Executor/Executrix, the probate of the will before the Philippine court can still proceed . And for this purpose, any heir or creditor may file the necessary petition in court for the probate of the will.
In cases where the will failed to designate an executor or the executor refused to accept such appointment or is incompetent, the will could still be probated pursuant to Sec.6 , Rule 78 of the Revised Rules of Court, and the following order of preference, may be appointed by the Court , as Administrator of the Estate , to wit :
a) The surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.
Under the law, it is the duty of the person who has custody of the will to deliver the will to the court within twenty (20 ) days after the custodian of the will have learned of the death of the testator. Failing to do this may subject such person to fine by the court for neglect .(Secs . 2 & 3 – Rules of Court )
Furthermore, the Tax Code also requires that within two(2) months from the death of a decedent, it is the obligation of the estate through the heirs to serve notice to Bureau of Internal Revenue(BIR) of the fact of such death and not later than six(6) months thereafter, pay the corresponding Estate Taxes thereof. Otherwise, penalty charges and interest of the tax due thereof shall be imposed for late filing and payments of the estate tax.
More delays mean more money would be wasted in the form of penalty charges and interest on a yearly basis that could accumulate to such huge amount in the course of time. Obviously, it would be to the best interest of the all the heirs to address the matter at the earliest time possible.
Based on the foregoing, this corner looks forward that your queries and concerns are answered. Thank you for writing and good luck !