I have a neighbor whose husband just passed away. He left several properties but there is no house and lot involved. My neighbor’s eldest son proposed to divide the properties. She has no problem dividing the properties among them, but she still has two minor children. She just wants to know what they have to go through to process the division of the properties. Her son also told her that they have to pay a bond. What is this for? My neighbor has no job and she only depended on her husband while he was still alive because she was the one taking care of their children. If ever, she may have to borrow this money so she just wants to make sure this bond is really necessary.
Dear Brave Soul,
If your neighbor’s husband passed away without leaving a last will and testament, no debt, and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, they may, without securing letters of administration, divide the properties among themselves as they deem fit by executing a public instrument and filing the same before the Office of the Register of Deeds of the place where the decedent last resided. Should the heirs disagree as to how the division shall be made, they may seek for the division of the subject estate through an ordinary action of partition (Section 1, Rule 74, Rules of Court). The fact of the extrajudicial settlement shall be published in a newspaper of general circulation once a week for three consecutive weeks. But no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof (Section 1 in relation to Section 2, Rule 74, Rules of Court).
Considering that your neighbor’s husband only left personal properties, it is indeed necessary for the heirs to file a bond with the same register of deeds, in an amount equivalent to the value of the personal properties involved. This shall be certified to under oath by your neighbor and the other heirs of the decedent, and conditioned upon the payment of any just claim that may be filed by an heir or other person who has been unduly deprived of his or her lawful participation in the estate. Nevertheless, it shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent (Section 1 in relation to Section 4, Rule 74, Rules of Court).
On the other hand, if your neighbor’s husband left a last will and testament, the provisions of such will must be respected and your neighbor as well as the other heirs of the decedent may not divide the properties among themselves without having such will submitted before the court for probate. This is pursuant to Section 1, Rule 75 of the Rules of Court, which states that, “No will shall pass either real or personal estate unless it is proved and allowed in the proper court.
Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.”
Consequently, the last will and testament of your neighbor’s husband must be submitted by the person who is in possession thereof within twenty days from the time he gains knowledge of the death of the said testator before the court which has jurisdiction over the place where he last resided, or to the court of the place where his estate may be found if he is a non-resident of the Philippines. The proper petition for the allowance of his will must likewise be filed before the said court, containing among others, the names, ages, and residences of the heirs, legatees and devisees, as well as the probable value and character of the property. Should the court find everything in court, the estate left by your neighbor’s husband will be distributed in accordance with the provisions of his will.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com